Lawful Illegality: What Snowden Has Taught Us About the Legal Infrastructure of the Surveillance State

Abstract

The Snowden revelations have revealed to us, with impressive documentation, the technical infrastructure of contemporary state surveillance. What is less obvious, but of great importance, is the revelation of the legal infrastructure of this surveillance. We need to stop thinking that the issue is illegal activity on the part of our national security agencies and instead start from the proposition that our national security agencies do understand themselves to be acting within the law. The problem, I argue, is that this legal infrastructure is best understood as one of “lawful illegality.” Unlike other discussions of the rule of law and terrorism, which have focused on the nature of emergencies and the perceived need to preserve executive discretion to respond to exceptional circumstances, I argue that state surveillance raises a very different rule of law question. Surveillance is a mode of rational social ordering and the question is whether it is in conflict with the deepest commitments of law as a mode of rational social ordering.I claim that the issues of secrecy, complexity, and jurisdiction work together to create “lawful” paths for state surveillance for national security purposes that are nevertheless in deep tension with a general commitment that this surveillance be subject to the oversight and accountability demanded by the rule of law. Throughout, I illustrate these issues with a set of examples largely taken from the Snowden revelations, with a Canadian perspective. These examples are not meant to provide an exhaustive overview of the issues but to highlight the importance of attending to these larger questions of legality if we are going to move forward and design a better system of oversight.