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Global performance indicators (GPIs), such as ratings and rankings, permeate nearly every type of human activity, internationally and nationally, across public and private spheres. While some indicators aim to attract media readership or brand the creator's organization, others increasingly seek to influence political practices and policies. The Power of Global Performance Indicators goes beyond the basic questions of methodological validity explored by others to launch a fresh debate about power in the modern age, exploring the ultimate questions concerning real-world consequences of GPIs, both intended and unintended. From business regulation to terrorism, education to foreign aid, Kelley and Simmons demonstrate how GPIs provoke bureaucracies, shape policy agendas, and influence outputs through their influence of third parties such as donors and market actors and, potentially, even broader global authority structures.
Chapter 8 discusses the final category of technology enhanced surveillance: hyper-intrusive searches. These searches occur when law enforcement agents use surveillance technology to see and hear private, intimate information that would otherwise be undetectable. This category includes video monitoring of private places and real-time interception of oral or digital communication. This type of surveillance unquestionably needs greater regulation; the question is what form that regulation will take. This chapter notes that courts have a variety of different tools at their disposal that can make hyper-intrusive searches more productive, and provides guidance to courts as to which tools to use for each type of hyper-intrusive search.
Chapter 3 examines the challenges of applying the cost–benefit analysis theory given the current legal stanrads used by courts. The cost–benefit analysis theory requires quantified costs and benefits, while the current legal system uses broad, descriptive standards to evaluate searches. The chapter notes that the current legal standards are inconsistently applied, and thus provide inadequate guidance to police who are attempting to follow these standards. The chapter also points out a dissonance between how judges apply the current standards and how lay people believe the standards should be applied. The solution is to quantify the legal standards, thus making the standards more transparent, allowing for a greater range of standards, and allowing the judges to use data from predictive algorithms as formal factors in deciding whether to allow a certain type of surveillance. This will also allow courts and policymakers to use the cost–benefit analysis theory more accurately and efficiently.
The Introduction sets out the problem of applying the Fourth Amendment to modern-day surveillance techniques and compares two different theories that can be used to guide courts and policymakers when they address these questions: the equilibrium adjustment theory to the cost–benefit analysis theory. The chapter concludes that the cost–benefit analysis theory is superior because it is able to evolve as societal expectations of privacy evolve, and because it encourages surveillance methods that create a positive sum change in the trade-off between privacy and security.
Chapter 7 explores a specific aspect of mosaic searches: information that individuals turn over to private companies. Under the controversial third party doctrine, individuals surrender all Fourth Amendment rights when they share information with a third party. Most legal scholars criticize the third-party doctrine as anachronistic and a significant threat to privacy. This chapter will argue that the conventional wisdom is wrong, for two reasons. First, modern information sharing enhances our privacy; thus, some aspects of the third-party doctrine can be classified as reactive surveillance. But more importantly, the cost–benefit analysis theory reveals that this massive private collection of data is a positive-sum shift in surveillance. On the privacy side, corporations themselves can assert their own Fourth Amendment rights to keep this information secret – a phenomenon we are already seeing in many technology companies that store and transfer our data. On the security side, millions of companies are constantly collecting billions of pieces of data, all of which can be available to help solve crimes when the government can meet the appropriate standard to overcome the companies’ Fourth Amendment rights.
Chapter 4 discusses the topic of reactive surveillance, such as thermal imagers, decryption tools, and devices that reveal the phone numbers that are being dialed on a telephone. These are tools which the government needs in order to respond to privacy-enhancing technology used by private citizens. Although reactive surveillance tools can be very intrusive in some ways, in most contexts they are only being used to learn information that would ordinarily be public, but has been hidden by new forms of privacy-enhancing technology, such as heat lamps, encryption tools, and cell phones. In evaluating reactive surveillance, we need to consider both the level of criminal activity that is potentially masked by the privacy-enhancing technology, and how the privacy-enhancing technology has affected society’s expectations of privacy. In the context of encryption, we need to assist law enforcement even further, by creating a key escrow system which will give law enforcement the ability to decrypt any piece of data once they have obtained the proper legal authority
Chapter 6 examines mosaic searches, and discusses the potential and challenges created by big data surveillance. Recent developments in surveillance technology allow police to engage in various methods of widespread, low-cost surveillance, from tracking a person’s location through her cell phone to predicting behavior based on a person’s telephone records, credit card purchases, and other publicly available details. These data points will only become more numerous in the near future, as camera-mounted drones and self-driving cars become common. Courts and legislatures have been wary of these developments, and in fact have sought to restrict them because their financial cost is so low that they allow law enforcement to engage in nearly indiscriminate surveillance. But the cost–benefit analysis theory shows that courts should adopt the opposite approach: all other factors being equal, a surveillance method that is less expensive should be encouraged, not restricted. Furthermore, encouraging low cost widespread surveillance will help to even out the massive inequities we now see in government surveillance, where the poor and people of color bear a much greater cost than more enfranchised citizens. Finally, applying the cost–benefit analysis theory will require the government to demonstrate the benefits of indiscriminate surveillance, which will encourage the government to develop and utilize more productive (and less intrusive) methods of surveillance.
The conclusion proposes that legislatures and ultimately administrative agencies need to take the lead to measure the costs and benefits of different types of surveillance. It also proposes four principles to guide courts and policymakers going forward: encourage bunary searches, encourage lower cost surveillance methods, maintain the third party doctrine but enhance the Fourth Amendment rights of corporate third parties; and use existing legal tools to restrict hyper-intrusive searches.
Chapter 5 describes a uniquely productive type of surveillance known as a binary search. Binary searches reveal no information other than the absence or presence of illegal activity. The Supreme Court has correctly determined that a binary search does not implicate the Fourth Amendment, since an individual does not have a legitimate expectation of privacy in illegal conduct. The cost–benefit analysis theory encourages binary searches, because they are the perfect example of positive sum surveillance: if designed properly, they can increase the level of crime detection without increasing the level of privacy infringement. Soon facial recognition technology and advances in crime recognition software will allow law enforcement to achieve nearly 100 percent enforcement for certain crimes. Such a development, though theoretically desirable, has potentially negative side effects.
Chapter 2 focuses on the benefits side of the cost–benefit analysis equation, and notes that the rise of big data’s predictive algorithms allow law enforcement to measure the likely success rate of their surveillance with far greater precision than in the past. These predictive algorithms have the potential to revolutionize criminal investigations in many ways, by making them cheaper, more accurate, and less biased. However, the surveillance technologies must be designed in ways to ensure that they meet the Fourth Amendment’s requirement of particularized suspicion and to ensure that they do not rely on tainted data.
Chapter 1 of the book describes the the cost–benefit analysis theory in more detail by examining how to measure the costs of different types of surveillance, particularly their cost to our privacy. Currently the Supreme Court has the task of determining these costs, but it is poorly situated to make these determinations. Under the current regime, the Court usually can only tell us whether the intrusiveness of a certain type of surveillance passes a certain threshold of intrusiveness – that is, whether the surveillance is a “search.” But the cost–benefit theory requires a more precise calculation of the level of intrusiveness; it requires a measurement of the degree to which the surveillance infringes on our privacy. Furthermore, the Supreme Court decides only one or two cases a year on this issue, which is insufficient to keep up with the myriad of new types of surveillance that occur in modern investigations.
Over the last decade, law enforcement agencies have engaged in increasingly intrusive surveillance methods, from location tracking on cell phones to reading metadata off of e-mails. As a result, many believe we are heading towards an omniscient surveillance state and irrevocable damage to our privacy rights. In Smart Surveillance, Ric Simmons challenges this conventional wisdom by taking a broader look at the effect of new technologies and privacy, arguing that advances in technology can enhance our privacy and our security at the same time. Rather than focusing exclusively on the rise of invasive surveillance technologies, Simmons proposes a fundamentally new method of evaluating government searches - based on quantification, transparency, and efficiency - resulting in a legal regime that can adapt as technology and society change.
In recent decades, IGOs, NGOs, private firms and even states have begun to regularly package and distribute information on the relative performance of states. From the World Bank's Ease of Doing Business Index to the Financial Action Task Force blacklist, global performance indicators (GPIs) are increasingly deployed to influence governance globally. We argue that GPIs derive influence from their ability to frame issues, extend the authority of the creator, and — most importantly — to invoke recurrent comparison that stimulates governments' concerns for their own and their country's reputation. Their public and ongoing ratings and rankings of states are particularly adept at capturing attention not only at elite policy levels but also among other domestic and transnational actors. GPIs thus raise new questions for research on politics and governance globally. What are the social and political effects of this form of information on discourse, policies and behavior? What types of actors can effectively wield GPIs and on what types of issues? In this symposium introduction, we define GPIs, describe their rise, and theorize and discuss these questions in light of the findings of the symposium contributions.
We argue that the World Bank has successfully marshaled the Ease of Doing Business (EDB) Index to amass considerable influence over business regulations worldwide. The Ease of Doing is a global performance indicator (GPI), and GPIs—especially those that rate and rank states against one another—are intended to package information to influence the views of an audience important to the target, such as foreign investors or voters, thus generating pressures that induce a change in the target's behavior. The World Bank has succeeded in shaping the global regulatory environment even though the bank has no explicit mandate over regulatory policy and despite questions about EDB accuracy and required policy tradeoffs. We show that the EDB has a dominating market share among business climate indicators. We then use media analyses and observational data to show that EDB has motivated state regulatory shifts. States respond to being publicly ranked and some restructure bureaucracies accordingly. Next we explore plausible influence channels for the EDB ranking and use an experiment involving US portfolio managers to build on existing economics research and examine whether the rankings influence investor sentiment within the experiment. Using a case study of India's multiyear interagency effort to rise in the EDB rankings, as well as its decision to create subnational EDB rankings, we bring the strands of the argument together by showing how politicians see the ranking as affecting domestic politics, altering investor sentiment, and engaging bureaucratic reputation. Overall, a wide variety of evidence converges to illustrate the pressures through which the World Bank has used state rankings to achieve its vision of regulatory reform.
This article explores the activities of the Society of Apothecaries and its members following the foundation of a laboratory for manufacturing chemical medicines in 1672. In response to political pressures, the guild created an institutional framework for production which in time served its members both functionally and financially and established a physical site within which the endorsement of practical knowledge could take place. Demand from state and institutional customers for drugs produced under corporate oversight affirmed and supported the society's trading role, with chemical and pharmaceutical knowledge utilized to fulfil collective and individual goals. The society benefited from the mercantile interests, political connections and practical expertise of its members, with contributions to its trading activities part of a much wider participation in London's medical, scientific and commercial milieu. Yet, as apothecaries became increasingly engaged in the practice of medicine rather than the preparation and sale of drugs, the society struggled to reconcile the changing priorities of those it represented, and tensions emerged between its corporate and commercial activities.