Anglo-American privacy and surveillance.

AuthorDonohue, Laura K.

TABLE OF CONTENTS INTRODUCTION I. SURVEILLANCE AND THE LAW 1N THE UNITED STATES A. REASONABLE EXPECTATION OF PRIVACY B. NATIONAL SECURITY AND SURVEILLANCE 1. The Red Scare 2. Title III 3. Executive Excess a. NSA: Operation SHAMROCK and MINARET b. FBI: COINTELPRO and the Security Index/ADEX. c. CIA: Operation CHAOS d. DOD: Operation CONUS 4. The Church Committee 5. The Foreign Intelligence Surveillance Act C. THE INFORMATION AGE 1. 1994 Communications Assistance for Law Enforcement Act 2. 2001 USA PATRIOT Act a. FISA Alterations b. Delayed Notice Search Warrants c. National Security Letters D. WEAKENING OF THE ATTORNEY GENERAL GUIDELINES. E. SURVEILLANCE OPERATIONS 1. Counterintelligence Field Activity 2. Echelon 3. Carnivore/DCS 1000 4. Magic Lantern 5. Terrorism Information and Prevention System (TIPS) 6. Watch Lists F. DATA MINING 1. Advances in Technology and the Commodification of Information 2. Data Mining Operations II. SURVEILLANCE AND THE LAW IN THE UNITED KINGDOM A. THE EVOLUTION OF INFORMATION-GATHERING AUTHORITY 1. Property Interference 2. Interception of Communications a. Malone v. United Kingdom and its aftermath b. Halford v. United Kingdom and the Regulation of Investigatory Powers Act 2000 c. Effectiveness of Safeguards 3. Covert Surveillance: Intrusive, Directed, Covert Human Intelligence Sources a. Khan v. United Kingdom b. 2000 Regulation of Investigatory Powers Act 4. Encrypted Data B. POST-9/11: THE 2001 ANTI-TERRORISM, CRIME AND SECURITY ACT C. ANONYMITY AND SURVEILLANCE IN PUBLIC SPACE: CCTV 1. Data Protection Act 1998 2. European Courts 3. CCTV in the United States III. POLICY CONSIDERATIONS A. RISKS 1. Substantive 2. Political 3. Legal 4. Social 5. Economic B. OPTIONS CONCLUDING REMARKS INTRODUCTION

In October 2001, President George W. Bush authorized the National Security Agency ("NSA") "to intercept the international communications of people with known links to al Qaida and related terrorist organizations." (1) Four years and two months later, news of the program became public. Attorney General Alberto Gonzales defended the Commander-in-Chief's power to ignore warrants otherwise required under the Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets Act. (2) Congress itself had authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. (3) For Gonzales, this meant that the President was acting "at the zenith of his powers" under the tripartite framework set forth by Justice Jackson in Youngstown v. Sawyer. (4)

This was not the first time Article II claims backed surveillance programs designed to protect the United States from attack. In the midst of the Cold War, the NSA ran Operations SHAMROCK and MINARET. The Federal Bureau of Investigation ("FBI") orchestrated COINTELPRO and amassed over 500,000 dossiers on American citizens. The Central Intelligence Agency ("CIA") oversaw Operation CHAOS and built a database that tracked 300,000 people. Routine counterintelligence operations disrupted everything from women's liberation to the civil rights movement.

However, in 1978, Congress introduced the Foreign Intelligence Surveillance Act ("FISA") precisely to prevent unchecked executive surveillance of American citizens. And congressional interest in ensuring oversight did not end there: in 1991 Congress amended the 1947 National Security Act to require the President to keep the congressional intelligence committees "fully and currently informed" of surveillance programs underway, including any "significant anticipated intelligence activity." (5)

According to Rep. Jane Harman, instead of telling the full committees in both houses about the recent NSA's domestic spy program, the executive branch only gave notice to the "Gang of Eight"--the majority and minority leaders of both houses, and the chairs and ranking members of the congressional intelligence committees. (6) Although this would have constituted sufficient notification for covert action (which excludes activities aimed at acquiring information), Harmon claimed it stopped short of the statutory requirement.

Wherever one falls in this debate, the NSA program represents only one of many expansions in executive surveillance since 9/11. Legal controls previously introduced to protect citizens' privacy and to prevent the misuse of surveillance powers have been relaxed What makes the situation qualitatively different now is not just the lowering of the bar: digitization and the rapid advancement of technology mean that the type and volume of information currently available eclipse that of previous generations. And the issue is not confined to the United States. Despite the incorporation of the European Convention of Human Rights into British law, the United Kingdom also appears to be losing privacy in its battle against terrorism.

Part I of this article looks at the American institution of legal controls on the executive branch and their subsequent erosion post-9/11. It explores three changes incorporated in the USA PATRIOT Act: alterations to the Foreign Intelligence Surveillance Act; the introduction of Delayed Notice Search Warrants; and the expansion of National Security Letters. Outside of this legislation, the weakening of the Attorney General guidelines increased the FBI's ability to collect information. The article highlights the Department of Defense's ("DOD") movement into the domestic surveillance realm. It discusses a number of operations both inside and outside the DOD, such as TALON, Echelon, Carnivore, Magic Lantern, TIPS, and the use of watch lists. Part I concludes with a discussion of the data mining efforts underway. The article argues that Total Information Awareness, ADVISE, and other projects catapult surveillance into another realm. Moreover, while any one program, such as the NSA initiative, may be considered on narrow grounds, the sheer breadth of current powers raises important concerns.

Part II notes that, until recently, no laws governed police and intelligence service information-gathering authorities in the UK. Extraordinary stop and search powers for terrorist-related offences, and warrants for police interference with property provided exceptions. But physical searches of property conducted by the intelligence services, the interception of communications by law enforcement and intelligence agencies, the use of covert surveillance or "electronic bugs," and the running of covert human intelligence sources operated under the legislative and judicial radars. Beginning in the mid-1980s, the European Court began to raise objections to the lack of safeguards and statutory framework. But each time the Court handed down a significant finding against the United Kingdom, the state responded not just by, at least on the surface, meeting the demands of the European Convention of Human Rights, but, it appears, by expanding executive surveillance authorities. Moreover, the warrant system introduced retained control within the executive branch. Not subject to judicial review, the standard applied is reasonable suspicion--considerably less robust than probable cause. Like the United States, Britain draws on new technologies; the country leads the world in its use of public surveillance systems.

Having laid out legal developments on both sides of the Atlantic, Part III moves to policy concerns: it begins by briefly exploring the substantive, political, legal, social, and economic risks posed by such measures. It then considers six approaches that would help to mitigate the risks. First is the possibility of creating a property right in personal information. The second centers on the regulation of access, transfer, use, and retention of data. Such efforts would satisfy demands for accountability and transparency in both the public and private sector. A third possibility centers on scaling back the existing powers of the state. Fourth, both countries may contemplate placing limits on what constitutes national security. Fifth, alternative safeguards and oversight structures deserve attention--such as reporting requirements, random audits, the creation of ombudspersons, the insertion of the judiciary, and (in the UK) allowing intercepted communications to be used as evidence. Sixth, preventing countries from introducing ever greater powers of surveillance under the claim that they are only temporary in nature would force legislatures to consider the long-term impact of provisions beyond the immediate terrorist threat.

  1. SURVEILLANCE AND THE LAW IN THE UNITED STATES

    In 1920, Frank Cobb, the editor of New York World wrote, "[t]he Bill of Rights is a born rebel. It reeks with sedition. In every clause it shakes its fist in the face of constituted authority.... [I]t is the one guarantee of human freedom to the American people." (7) Cobb had a point: the first of all the amendments puts a bullet in the heart of British licensing practices and the legacy of the Star Chamber, claiming the right to freedom of speech, assembly, and religion. The Fourth Amendment assured, "It]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (8) This provision flew in the face of British writs of assistance, which had been used against the colonists with reckless abandon. (9) But rebellion did not stop there. The Fifth Amendment made a rude gesture towards state agencies that might contemplate torture, demanding that no person "be compelled in any criminal case to be a witness against himself." (10) And due process, in the same clause, provided a bulwark against state violations of individual rights. (11)

    While notable in their attempt to limit state power, in none of these measures did the Bill of Rights, on its face, create a general right to privacy. Instead, the Supreme Court...

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