The Value of Privacy in an Era of Security: Embedding Constitutional Limits on Preemptive Surveillance

Abstract

The reconfiguration of the security landscape in recent years has resulted in the transformation of the relationship between the individual and the state. A catalyst toward this transformation has been the growing link between securitization and preemptive surveillance, and the focus of security governance on the assessment of risk (Amoore and de Goede 2008). Central in this context is the focus on the future, and the aim of preemptive surveillance to identify and predict risk and dangerousness (Bigo 2006). The preemptive turn in surveillance has been based largely upon the collection, processing, and exchange of personal data, which has in turn been marked by three key features. The first feature involves the purpose of data collection and processing. This is no longer focused solely on data to address the commission of specific, identified criminal offenses, but focuses rather on the use of personal data to predict risk and preempt future activity. The second feature involves the nature of the data in question. On the one hand, preemptive surveillance focuses increasingly on the collection of personal data generated by ordinary, everyday life activities. This includes records of financial transactions (Mitsilegas 2003; de Goede 2012), of airline travel (PNR) reservations (Mitsilegas 2005), and of mobile phone telecommunications (Mitsilegas 2009). The focus on monitoring everyday life results in mass surveillance, marked by the collection and storage of personal data in bulk. On the other hand, the focus on prediction and preemption has been linked with the deepening of surveillance via the collection of sensitive personal data from the human body, such as DNA samples and biometrics (Lyon 2001; Amoore 2006). The third feature of preemptive surveillance involves the actors of surveillance. A key element in this context, linked with the focus on the monitoring of everyday life, is the privatization of …