Mass Surveillance in Liberal Democracy: Freedom, Security, and the Rise of Soft Despotism

One of the most extreme cases of a surveillance state was East Germany following the Second World War. The Ministry for State Security (or Stasi) deployed extensive means of surveillance, including wiretapping, mail interception, and a network of informants. Yet surveillance now extends to societies we would typically think of as free. Mass surveillance in liberal democracies is not new, but it goes against foundational principles of free societies by following the surveillance model set by non-​liberal democracies, like China. One important development in mass surveillance dates back to the Cold War’s creation of the UKUSA Agreement, which established the “Five Eyes” intelligence alliance between Australia, Canada, New Zealand, the United Kingdom, and the United States. The Five Eyes built ECHELON, a global surveillance and interception network that shares data among these nations.

After this period, mass surveillance reached a high point in the post-​9/​11 era during 2001–2012. The Patriot Act in the US significantly expanded the surveillance, data collection, and investigative capacities of US intelligence agencies and law enforcement. Notably, it allowed the government to monitor citizens’ phone and internet use, including both metadata and actual content, and to access sensitive medical and financial records without a warrant. This led to significant public outcry and raised questions of constitutionality. As such, the Patriot Act persists in the cultural memory of Americans and persons worldwide debating mass surveillance today.

These developments in surveillance became even more pressing in 2013 with the revelations of Edward Snowden, a former National Security Agency (NSA) contractor. Snowden disclosed classified documents to the public that revealed the vast extent of the US government’s data harvesting and surveillance regime. His disclosures catalyzed an international discussion on the extent of digital privacy and the limits of state power.

Mass surveillance continues to evolve, driven largely by advances in technology such as artificial intelligence (AI). AI supercharges mass surveillance because of the speed with which it can analyze data in real-​time, far surpassing the capacities of human beings. It can harness advanced tools more effectively than humans, particularly facial recognition enabled by machine learning. That said, in several instances, AI incorrectly recognized faces and led to unjust arrests. Similarly, some have claimed that AI’s use of outdated geospatial data for intelligence purposes has led to mass civilian casualties. Nevertheless, the defense community is moving full speed ahead with AI, which is seen as essential for making intelligence more efficient and precise—yet not without concerns about its justice and accuracy.

Mass surveillance is not limited to the sole workings of the modern state. Recently, tech companies have mobilized mass surveillance to assist the US government with immigration and national security objectives. The Department of Homeland Security worked with these companies to use AI to monitor the social media of persons applying for visas or green cards. It did so to discern extreme rhetoric that it considered antithetical to American values. Furthermore, recent developments, like AI-​driven scanning of license plates, raise questions about the constitutionality of the government’s use of AI, especially related to freedom of association (First Amendment) and protection from unreasonable search and seizure (Fourth Amendment). The development of REAL ID faces similar issues regarding data sharing between states.

But this widespread employment of AI for security is not confined to the American context. In fact, the surveillance state is developing in Europe at a comparatively faster speed. Developments like AI-​powered biometrics in airport security are top of mind for many. In the UK, the state employs ULEZ cameras in London to ensure vehicle compliance with low emissions, in addition to conducting mass surveillance of social media posts for content it considers socially harmful, leading to over 12,000 arrests. The recent Athens and Paris Olympics were also a catalyst for employing technology to monitor attendees for unusual or criminal activity.

On a more anodyne but still concerning level, recent months have seen the global development of airlines using surveillance pricing for plane tickets. Airlines track customers’ browsing data through cookies and their purchase history in order to scale the prices they see accordingly, raising questions about digital privacy.

The emerging mass surveillance regime worldwide—especially in liberal democracies—should be of concern to classical liberals. Liberals tend to prize civil liberties, like privacy, over national security apparatuses, as the latter expand government’s role beyond its constitutional purpose and concentrate power, often in unaccountable bureaucracies tasked with administering the surveillance. These concerns have long been central to theorizing the role of sovereign power in the nation-​state. Indeed, Hobbes’s theory of sovereignty notably provides the conceptual basis for the modern surveillance state. To avoid the chaos of the state of nature, Hobbes theorized that human beings surrender their autonomy to an absolute sovereign, the Leviathan, in exchange for security that ensures self-​preservation.¹ These ideas influenced the expanded control of the surveillance state, reflecting Max Weber’s conception of the state as the “monopoly on violence.”²

Informed by theories of absolute sovereignty, recent developments in mass surveillance raise a dynamic tension at the heart of liberal democracies: that of freedom and security. Ideally, a liberal democracy reconciles freedom and security. It does so through the state guaranteeing civil liberties, as well as providing a level of security for citizens to live free from fear of invasion and severe personal insecurity. Accordingly, all the major liberal democracies, while generally supportive of negative liberty in their constitutional law, also tend to have welfare states that ensure security—though the extent of this security varies widely and remains contested.

Classical liberals prize freedom over security in part because they recognize the vitality of civil liberties for human freedom and the effective functioning of democracy. When citizens are allowed to speak and associate freely and have their privacies safeguarded, societal well-​being will exceed that of non-​democratic regimes that suppress negative liberty. Civil liberties advance democratic order, which as Dambisa Moyo has shown is empirically linked to other desiderata like higher levels of economic growth.³

But freedom and security exist in uneasy tension. Prizing negative liberty calls for a limited role for the state. Yet it is this very state that is invoked to drive security, often for positive rights as well as national security. What then becomes of the liberal element in liberal democracy, with its valorization of freedom? Recently, institutions of global governance have sought to prioritize security over freedom, exemplified by the United Nations’s Sustainable Development Goals (SDGs). The SDGs are putatively focused on economic security, prizing goals like absence of hunger and poverty. They evince a shift toward state-​sponsored access to resources over the civil liberties enshrined in earlier treaty law like the International Covenant on Civil and Political Rights (ICCPR). To drive security, they rely substantially on surveillance, tracking individuals and firms to ensure compliance.

Civil liberties are central to the constitutional law and treaty law of modern liberal democracies. Yet citizens of these societies often take for granted the freedoms that they enjoy, developing an awareness of them only when they come under strain. We saw this prominently in the recent COVID pandemic, as well as in states of exception in India, the US, and elsewhere over the last several decades. Today, civil liberties like privacy are under especially strong pressure because of the security state. But there may not even be a genuine tradeoff between freedom and security. In particular, significant infringements of freedom, including privacy, make persons less secure against opportunistic and nefarious entities with access to sensitive information about them.

Giorgio Agamben has theorized mass surveillance as a quintessential activity of modern biopolitics, a conception of the political informed by Michel Foucault where the state seeks to govern and control life. In Agamben’s analysis of biopolitics, the state of exception—when a sovereign suspends constitutional law and other democratic norms in the name of security—becomes the norm.⁴ The surveillance regime within a state of exception reduces citizens to mere biological life, rather than subjects with full civil and political rights and hence political agency.

Similarly, Achille Mbembe contends that the security state exists directly to control human life, whether that control is aimed at the state’s subjects within or its enemies without. Such control drives the illusion of security. A strong conception of the other, or Carl Schmitt’s “friend–enemy distinction,” as the essence of the political drives an interpretation of the other as “a mortal threat or absolute danger whose biophysical elimination would strengthen my life potential and security.”⁵ Yet this strong conception of security undermines freedom because security becomes the highest value, surpassing liberal norms of toleration and openness.

Mbembe rightly notes the illusion that security enhances freedom. A society where security prevails need not necessarily be a society of freedom. A society of security is governed by the need to adhere to certainties, “fearful of the type of interrogation that delves into the unknown, unearthing the risks that must surely be contained within … The aim of a society of security is not to affirm freedom but to control and govern the modes of arrival.”⁶ We see this prominently in crises of migration over the last decade, which raise questions of the national security of citizens in contrast to the free movement of migrants.

Deepening understandings of the shadow side to security, Foucault employs the metaphor of the panopticon, or a comprehensive and all-​seeing mechanism in a theoretical prison, to discern the contours of state surveillance. He argues that the panoptic model spread from the prison system and into society at large, giving institutions like hospitals and schools a disciplinary cast. In a panoptic model, citizens are being watched and must act as though they are being watched at any given time. That said, they are unaware of where those surveying them are stationed—hence the prison metaphor. The panopticon serves “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.”⁷

In the panoptic model, sovereign power is exercised without coercion yet still degrades citizens’ freedom. It does so in an arguably more insidious way than overt coercion because it dissuades persons from acting freely or regarding themselves as agents deserving of freedom and privacy. This reality is exemplified by the present normalization of hidden forms of facial recognition, which can be used for questionable purposes that undermine freedom.

Alexis de Tocqueville famously called this “soft despotism” and relates it to the ultimate stage of democratic individualism. When citizens are fully equal and independent of each other, he argues, they see no need for each other, leading to the decline of habits of care and an over-​reliance on the state and not other persons for the necessities of human welfare. This is soft despotism. It is soft insofar as it mildly degrades human beings, often without their awareness, while it transfers control to the state. But it is also despotic because the state’s comprehensive power grows.⁸

Although Tocqueville wrote several centuries prior to mass surveillance, and though he aimed his critique specifically at the administrative state, his insights prove prescient today. A significant amount of mass surveillance takes place without citizens’ awareness, evincing those mild yet degrading features of the softly despotic state that Tocqueville theorized. Further, Tocqueville rightly saw the necessity of associational life for countering the excesses of democratic individualism that drive soft despotism.

But classical liberals might also point to a renewed commitment to constitutionalism. The strengthening of constitutional mechanisms, like separation of powers, can help constrain sovereign violence and preserve civil liberties—particularly the indispensable value of privacy for citizens. Associational life proves vital as well for countering the soft despotism of the security state, closer to the individual person compared to constitutional mechanisms that are more challenging to influence.

The mass surveillance regime develops apace in the United States and Europe, despite these nations being liberal democracies. From the Patriot Act to contemporary AI-​driven approaches to immigration and national security, history attests that security often comes at the cost of freedom, especially civil liberties like privacy. Freedom and security are ideally reconciled in a liberal democracy, but in the present moment security seems elevated higher.

Recent continental philosophers invested in human freedom illuminate this tension, recognizing that the modern security state has come to embody Tocqueville’s soft despotism and Foucault’s panopticon. Ultimately, liberal ideals of freedom help to discern the critical risk of trading liberty for security, given that the surveillance state is predicated on the desire for control. Although the American surveillance regime does not currently approximate that of East Germany’s, it still has warning signs of which classical liberals should be vigilant, with the ultimate aim of preserving freedom’s vitality.