Privacy and Surveillance: (Ancient) Historical Perspective

Title III of the 1968 Omnibus Crime Control Act comports with constitutional requirements, says Katz. This case then takes on a new life as a statement about new technologies. (Katz, as referenced last class, assumed a human-guided collection mechanism for wiretaps that was itself controlled by existing constitutional law.)

Modern History

The USA PATRIOT Act, Moglen says, is just the same shopping list the Clinton White House sent up after the first WTC bombing, USS Cole bombing, etc. This was not a particularly partisan issues, because the spooks and cops always had the same requests. The issue that affects Katz and its now-dated metaphor is the roving wiretap (which argues the old specificity -- a telephone number -- is no longer a practicable requirement.)

Digression -- 9/11 Truthers and Secret Rooms in Central Offices

Surveillance Today

After 2001, we went from an acquisition mode (wiretaps, etc) to a prediction mode. In other words, a fundamental shift between policework and national security. It's more about finding needles in a haystack now.

Within weeks of 9/11, the administration was implementing plans for domestic surveillance, reading its FISA authorizations as broadly as possible, and the OLC, etc, were reading the executive powers extraordinarily broadly. Domestic wiretaps -- aimed at sifting the haystack -- go into use. Specificity goes away.

The 4th Amendment Today, in Practice

It's been important to the SC that wiretaps are not applied to property of the person being tapped -- no trespass allegations can arise.

For most of the 20th century, the Olmstead way of thinking rolled toward conclusion. New doctrine lines (legitimate expectation of privacy, with common law as a baseline) develop, but that's about it. For new things (automobiles), courts look to Congress to see what protections there may be.

Title III of 1968 Omnibus comports with constitutional requirements, says Katz. The case then takes on a new life as a statement about new technologies. (Katz, as referenced last time, assumed a human-guided collection mechanism that was itself susceptible to constitutional law.)

Post-1968: relevance of phone number as analog to an address? (Must say where you're going to search, i.e., what phone you're going to listen to.) Of course, as landline telephony decreases, this metaphor is less and less useful.

PATRIOT Act, Moglen says, is just the same shopping list the Clinton White House sent up after the first WTC bombing, USS Cole bombing, etc. It's a non-partisan issue, because the spooks and cops always have had the same requests. The issue that affects Katz and its now-dated metaphor is the roving wiretap (which argues the old specificity -- a telephone number -- is no longer a practicable requirement.)

'68 act is about one copper pair, clamped down on at the CO, and then observed. A nice, analog system. As digital telephony came into use, though, many conversations were carried on any circuit (multiplexed copper, and now fiber.) (Multiplexing = carrying multiple conversations on one physical pair, and in use since the 1980s.)

Multiplexed copper is a minor problem -- a couple calls that a human observer can discern and turn off the tape at the right time. With fiber, though, there may be thousands -- and there's no easy way to pull one call from the stream unless you control the switches. The pipe can no longer be tapped; this capability must be engineered into the switches.

Washington, circa 1993: Clinton administration proposes to make telephone providers pay for tapping, and build the capabilities into their switches. Telcos stridently object to cost and risk -- and ask to make customers pay for it somehow. (This battle split the EFF in twain -- "pragmatists" leave and cut a deal with the WH to protect some things, instead of an all-or-nothing battle.) The result is a law that imposes requirement on telcos to provide access to a certain proportion of all ongoing calls. (Government originally asked for 2% of NYC capacity.) Costs go partly to subscribers, partly direct from government.

Feds did NOT get the right to ask to tap >1 number at a time -- the now-arbitrary indication of phone number-as-place was maintained. This was what the spooks and cops gave up.

Also, at this point, NSA didn't spy on domestic traffic -- were outwardly scrupulous about it. Of course, lots of other people could pick up domestic traffic, and they could trade for it. Cops generally don't get access to spook intel, though, because it's never admissible evidence. For citizens, this boundary is a good thing. Foreign/domestic intel are on different sides.

Digression -- 9/11 Truthers --

Regardless of what brought it down (conspiracies aside), WTC 7 contained the bulk of the switching equipment for Manhattan. VZ took a long time to get its landlines back up (in 10021, etc) until into October. This means lots of new gear gets installed -- gear capable of pulling lots of conversations and data out of the network.

We may see a NYC parallel to the SFO AT&T/NSA room, but it won't be as important. Transatlantic connections are routed through South Orange, NJ, so there's lots of fiber, and hence probably lots of surveillance.

After 2001, we went from an acquisition mode (wiretaps, etc) to a prediction mode. In other words, a shift between policework and national security. It's more about finding needles in a haystack now.

Secret police haven't been present in the US since the 18th century in any real sense -- not in the way that other empires have used internal security. The temptation now is to abandon this distinction, which rests upon the prohibition on domestic general surveillance. We've used SIGINT plenty in international affairs, but not as much domestically.

FISA courts, etc, were meant to be used only against foreign agents operating in the US, and the system had rigid rules in place. The old rule was that the NSA was not entitled to ID any US citizens in their intercepts -- only FISA-susceptible parties. Addington and Cheney saw to the end of that rule.

Within weeks of 9/11, the administration was implementing plans for domestic surveillance, reading its FISA authorizations as broadly as possible, and OLC, etc, reading the executive powers extraordinarily broadly. Domestic wiretaps -- aimed at sifting the haystack -- go into use. Specificity went away.

Once you leave the law enforcement desire -- to prove beyond a reasonable doubt -- to just collecting intel, you just want general warrants, writs of assistance, the ability to search everything and find the subversives / terrrrrists. It's the same issue the British administrators had in the 1760s.

Late 2001, NSA had identified some people they wanted to know about through some commercial databases, and then decided to ransack the phone system to find out who they were talking to. (14 of the 19 9/11 hijackers had purchased electronic goods on stolen CCs, so the Secret Service now runs down any similar cases.)

It's the mass of information that provides utility. The line of thinking says that you need to search society at large, and it's gained a lot of traction. Getting away from this -- taking the tools away from the people fighting terror -- is a pretty difficult political battle, but an even more difficult conceptual one.

You could lay it all out in a legislatively enacted policy statement, delineating means of judicial review, disclosure, etc -- but there's no will. Legal discourse ranges from the Philip Bobbitt style hard-decisions-and-sacrifices-must-be-made to arguments based on 4th amendment rules that may no longer apply, now that we've moved toward the security-above-all else view.

We're no longer operating in a constitutional regime; we're operating in a consensus regime. We don't know who's running the system. We're past the post -- no immediate mechanism for rebuilding the old structures of constraint in the 4th amendment. It's a casualty of the GWoT? .

The technology was not in good keeping with the metaphors; now the old conceptions no longer restrain the power that controls the technology.

Lawson -- no rule that one must identify oneself to the police if just walking around. (If you're posing articulable risk, or doing something like driving a car, that's not true.) Is Lawson still good law? At the time it was decided, it wasn't necessary to show ID to get on an airplane, either. (As far as I can tell, the question was left open.)

Searches are moving to the personality -- digital signature / cloud / whathaveyou. And what is that cloud -- is it like a heat signature?

What, at the end, is the constitutional requirement to leave a person alone? What if there was a new status for citizens: "Constantly Monitored", or somesuch, where the police can observe every action you take, indefinitely. What means of justification exist -- or constitutional means to show it's unacceptable? (Other than the 9th amendment...)

These days, you can subpoena (without any showing of probable cause): private security cameras, financial transactions, commercial databases, EZPass, etc. What's left of the privacy in the home? The line around it is pretty small. So what is the core, constitutionally-forbidden set of things you can't do to a person?

The GWoT? can't go on forever as it currently does -- perhaps when the administration changes, perhaps another time -- but it will end, the pendulum will swing back. And when it does, the conversation will resume, and that's what we need to prepare for. How do we discuss the 4th amendment again?

We've had other times of much-heightened internal security (Lincoln's suspension of habeas corpus, J. Edgar's follies against the communists and others.) For that matter, MLK lived his live in something akin to constant monitoring, thanks to Hoover's orders. So sure, there's a way to talk about rights that go away and come back.

The 4th amendment wasn't hollowed out by the Bush administration, though they did a lot of work on implementation. Technology made the 18th-century analogies mostly irrelevant before they arrived on the scene. The doctrine isn't solid any more, and it's not sure where the bottom is.

Content is up for now, I'll take care of cleaning up the form (markup, clarity) in the near future. -- AlexMiddleton - 24 Jan 2008