The Dangers of Surveillance

Privacy and Security, Internet, Search and Advertising and Networks, the Internet, and Cloud Computing

Article Snapshot


Neil Richards


Harvard Law Review, Vol. 126, No. 7, 2013


Courts dismiss cases in which someone complains of surveillance, stating that observation alone is not harmful. Surveillance discourages individuals from sharing ideas and exposes them to risks like profiling. “Intellectual privacy” is crucial to foster civil liberties.

Policy Relevance

Courts should recognize that public and private surveillance harms individuals. Individuals should have a right to sue to limit this harm.

Main Points

  • Information flows from government to private companies and vice versa, eroding the traditional distinction between public and private surveillance.
  • New ideas develop best away from public scrutiny. “Intellectual privacy” is crucial to the freedom of thought and to free speech.
  • The subjects of public and private surveillance are exposed to threats of blackmail, to manipulative forms of persuasion, and to discriminatory profiling.
  • Both public and private surveillance should be regulated.
    • Trade in information between the public and private sector should be restricted.
    • Private-sector information important to intellectual privacy (such as reading habits, web-surfing, and private messages) should be confidential.
  • Secret surveillance programs should generally not be established.
  • Total surveillance of all Internet and telephone traffic is not legitimate.
  • Surveillance is harmful because it “chills” free speech.
    • Electronic Communications Privacy Act (ECPA) provisions barring surveillance without a warrant and other safeguards should apply to records of intellectual activity online, such as Internet search history.
    • Courts recognize that surveillance of doctors and lawyers violates constitutional rights; this protection should be extended to everyone.


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