Guzik (2009). Discrimination by Design

The tactics and strategies employed by the United States in its ‘War on Terrorism’ have generally been condemned as departures from the norms of how a democratic government conducts itself. Reforms are thus thought needed to place the ‘War on Terror’ under the rule of law and protect civil liberties. This article attempts to counter that view. Using predictive data mining — a technology at the heart of the US National Security Agency’s (NSA) surveillance scandal—as an example, it argues that rather than a break with the past, the tactics that the Bush Administration adopted to fight terrorism represent an extension of a particular type of future-oriented power which Foucault (2008) referred to as “security” or “government.” And while individual civil liberties are no doubt at stake, they are not at stake equally for everyone. Predictive data mining discriminates by design, designating certain groups as threats relative to others. Thus, persons with Middle Eastern and North African backgrounds will disproportionately bear the burden of this surveillance technique and the innumerable mistakes it produces. Finally, the rule of law would seem to offer little to remedy the situation. The War on Drugs, the policing of immigration, and past international disputes with ‘terrorist regimes’ have provided a “crime jurisprudence” (Simon 2007) that legitimizes such discrimination.
Paradoxically and pessimistically then, the real hope for change lies in the crisis of legitimacy that one could expect to result from the wider application of such discriminatory technologies or the benevolent reign of an executive branch that has been imbued with an authority beyond its traditional limits.