Dongsheng Zang, Telegraph, Telephone and the Internet: The Making of the Symbiotic Model of Surveillance States, 40 40 Ariz. J. Int’l & Comp. L. 1 (2023), https://digitalcommons.law.uw.edu/faculty-articles/981
surveillance state, NSA, national security, data collection
In the early 2000s, shortly before the September 11 attacks, Daniel J. Solove noted that computer databases in the United States were controlled by public as well as private bureaucracies. In that sense, Solove argued, the "Big Brother" metaphor "fails to capture the most important dimension of the database problem." In his 2008 Lockhart lecture, constitutional law scholar Jack M. Balkin argued that the United States has gradually transformed from a welfare and national security state to a National Surveillance State: "a new form of governance that features the collection, collation, and analysis of information about populations both in the United States and around the world." Balkin considered this a "permanent feature of the governance." Balkin noted, "much of the surveillance in the National Surveillance State will be conducted and analyzed by private parties," and that "the line between public and private modes of surveillance and security has blurred if not vanished."
This Article aims to build on the insights from Daniel J. Solove and Jack M. Balkin in constructing a model of the surveillance state that is based on the public-private "partnership" in sharing data. I will call this the symbiotic model of the surveillance state. There is no doubt that the surveillance state has been investing and will continue to invest its own resources in building its own data-
the National Security Agency (NSA) being one prominent example. The symbiotic model, however, claims that an increasing amount of data is collected and stored in private hands, and the surveillance state craves access to those data. After all, it is the private companies who create our favorite apps, gadgets, browsers, and platforms that collect data telling the most intimate aspects of our lives. In the words of Bruce Schneier, an acute observer of the tech world, what we face is a "very intimate form of surveillance."
This Article proposes a symbiotic model of the surveillance state to provide a framework to understand the breadth and depth of surveillance in contemporary cyberspace in domestic law enforcement processes. To achieve this goal, my analysis is built on insights from three dimensions: conceptual, historical, and comparative. In the conceptual dimension, this Article identifies three elements in the regulatory relations between data collectors and the regulatory state: (a) the very foundation for the control of data-property rights-which establishes and sets limits on constitutional constraints of the symbiotic relationship; (b) the doctrinal and statutory framework that forms the backbone of the symbiotic relationship; and (c) institutional dynamics in the symbiotic relationship. Bringing these elements together, this Article argues that, in the United States, digital platforms such as Google and Meta (Facebook) are data collectors, and their property claim over data is recognized by a judge-made rule called the third-party doctrine, which is interpreted from the Fourth Amendment. This constitutional rule creates vast space and flexibility for the surveillance state to access the data by a convenient legal instrument called a subpoena. Data collectors, from time to time, resist the requests from surveillance states and fight the burden imposed on them; thus, the relationship is a dynamic one.