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The Constitution in the National Surveillance State

In “The Constitution in the National Surveillance State”, author Jack Balkin creates a model for thinking about the current series of surveillance actions taken by the United States government upon American citizens as well as foreign citizens. Balkin argues that in the context of the War on Terror and increasing capabilities of the cyber realm, the development of what he terms a National Surveillance State (NSS) was essentially inevitable: the NSS supplements an increasing lack of governmental ability to apprehend and prosecute illegal actions taken through digital means (ie. cybercrime). He explains, however, that the NSS is not a self-sufficient entity, as it relies upon extensive cooperation with corporations such as data collectors, telecommunications companies, and other private entities. Balkin claims that the rise of the NSS—and its encroachment into the private sector as well as the public one—pose serious threats to the Fourth Amendment rights afforded to U.S. citizens, as loopholes allowing the government to circumvent the Constitution through use of corporations. Only through extensive action by the federal judicial branch and reinterpretation of a strengthened Fourth Amendment can the security needs of the collective come into balance with the privacy rights of the individual. Key Words: -National Surveillance State: System created by the United States government to collect and analyze information about U.S. citizens as well as about citizens of other countries -Data mining: Drawing conclusions about an individual and/or members of a group from the analysis of information stored in large public and private databases -Democratic Information State: System in which a government collects only information that is absolutely necessary to ensure public safety, with an explicit aim of ensuring personal privacy protection; regulated by checks and balances -Fourth Amendment: Protects American citizens from unreasonable search and seizures without a warrant
Jack M. Balkin
Yale Law School
Industry Focus: 
Internet & Cyberspace
United States of America