This week, the vexing constitutional questions keep piling up: How do we balance the goals of crime-solving and national security with personal privacy and other civil liberties? How do we apply the Fourth Amendment protection against unreasonable search and seizure when citizens spend much of their lives online? How do we allow the government to conduct classified activities while ensuring accountability?
The debate over the answers to those questions will (rightfully) continue in the wake of the Supreme Court DNA case and the surveillance program leaks. As we work through those answers, here’s a look at the recent developments, and a few interesting lessons we can agree on in the meantime.
On June 2, the Supreme Court ruled 5-4 in the case of Maryland v. King that it is constitutional to take the DNA, without a warrant, of anyone arrested for a “serious” crime. That DNA goes into a national database, even if the arrestee isn’t tried and convicted.
What we can agree on:
Supreme Court opinions can make for entertaining reading.
In “a dissent for the ages,” Justice Antonin Scalia—joined, in an unusual event, by some of the court’s most liberal justices—wrote:
“Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
Scalia is well-known for his way with words (and strong opinions about language) and is objectively the funniest justice on the bench. So it’s not too surprising that he could summon such vivid imagery to deride the court’s majority ruling.
So what is this “panopticon” he referred to? Scalia hints at its origins earlier in the opinion, when he talks of DNA identifying a suspect “in the sense that would identify the author of Introduction to the Principles and Morals of Legislation as Jeremy Bentham.”
Bentham, an 18th-century philosopher and social theorist, proposed the panopticon: a design for prisons (and potentially other institutions) in which inmates are housed along the perimeter of a circular building with guards stationed in the center, ideally out of sight of the prisoners so they can’t tell whether they are being watched. The panopticon, Bentham proclaimed, was “a new mode of obtaining power of mind over mind, in a quantity hitherto without example.”
As Ronald Collins wrote on SCOTUSblog last week, “It all comes down to how you see things. And that is precisely the point Justice Scalia wants us to perceive when we consider how the government views our genetic identities.”
Interestingly, there is another notable figure in the news who has evoked the same imagery—Edward Snowden, the NSA contractor and former CIA employee who leaked information about NSA surveillance programs. The Washington Post reported:
“Analysts (and government in general) aren’t bad guys, and they don’t want to think of themselves as such,” [Snowden] replied. But he said they labored under a false premise that “if a surveillance program produces information of value, it legitimizes it. … In one step, we’ve managed to justify the operation of the Panopticon.”
On June 6, The Washington Post and The Guardian reported that since 2007, the National Security Agency has operated a top-secret program named Prism, which includes tracking web users’ activity through the servers of top tech companies, including Google, Facebook, Microsoft, and Apple. (The news followed reports that the NSA has also collected the basic phone records of millions of Americans using Verizon.)
What we can agree on:
A program by any other name sounds as super-secret.
With a name like Prism, they were asking for it.
It sounds like something straight out of the Bourne series—and, to many concerned about the implications of the top-secret surveillance program, it might as well be.
PowerPoint slides shared with the Post and Guardian by Edward Snowden showed that the program’s official name was US-984XN. Clearly, the folks at NSA decided that wasn’t catchy enough and tried to get creative.
Prism actually does seem like an apt term for the program—like light through a real prism, information is presumably processed and dispersed through the program.
Sure, it’s no assassin-training program, but with a codename that fits right in with Treadstone and Blackbriar, it’s hard not to envision it heading in the direction of a clandestine gang of ethically bankrupt government agents. (Maybe they all use the same Codename Generator.)
But the Hollywood parallel ends there; it appears Snowden is no Jason Bourne. Along with revealing his identity, he revealed his location, mentioning he intended to seek asylum elsewhere—maybe the fictional Bourne would have been as bold, but
it sure would have made sense to head to a potential asylum location before sharing his identity.
Among the information revealed by Snowden was a set of more than 40 PowerPoint slides, several of which have been published by the Post and elsewhere, that explain the Prism program.
What we can agree on:
PowerPoint really is limited when it comes to design.
On the slides, the top-secret information being featured is nearly missed amidst a jumble of logos, text, and stretched-out graphics.
It didn’t take long for Edward Tufte, the famous Yale professor, author, and expert on data visualization, to bash the design, calling it “dreadful.”
“Classic PPT statistical graphic: Prism’s 13 logos, 10 numbers, 9 bubbles, 1 giant green arrow,” he tweeted. (A New Yorker columnist also took aim at the Prism logo design itself, saying “The tackiness is a depressing touch.”
Tufte has preached the dangers of PowerPoint before. One frequently cited example is the Columbia shuttle disaster; he argues that the use of PowerPoint buried crucial details about the shuttle’s weaknesses.
In a 2003 essay in Wired, Tufte declared PowerPoint is evil—“Power corrupts. PowerPoint corrupts absolutely.” And in a monograph, “The Cognitive Style of PowerPoint,” he called it “a prankish conspiracy against substance and thought.”
In a way it’s a bit comforting that the slides are such a mess—if the NSA isn’t competent enough to create a coherent presentation, we can tell ourselves, maybe they aren’t competent enough to establish a sinister, authoritarian surveillance state.
But Tufte’s point about PowerPoint is that it inherently discourages clarity and integrity. As one Washington Post columnist noted: “It’s hard not to feel all the cluttered logos and arrows and bubbles may have distanced the people reading them from the magnitude of what the slides reveal.”
Holly Munson is the assistant editor of Constitution Daily.
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