Privacy and Surveillance: (Ancient) Historical Perspective

As the Supreme Court sees it in Olmstead, the common law is not open to the development of new privacies. (Of course, the classic Brandeis paper, "The Right to Privacy", written in 1890, would argue otherwise.)

Also, It's traditionally been important to the Court 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 (the "legitimate expectation of privacy" concept, with common law as a baseline) develop, but that's about it. For new areas of contention (ex: searches in automobiles), courts look to Congress to see what protections there may be.

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.)

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.

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.)

The '68 Act envisioned one copper pair, clamped down on at the central office, and then observed by humans, over 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. The telcos stridently object to cost and risk -- and ask to make customers pay for it somehow. (This battle split the EFF in twain -- the "pragmatists" left and cut a deal with the White House to protect some things, instead of waging an all-or-nothing battle.) The result is a law that imposes the requirement on telcos to provide access to a certain proportion of all ongoing calls. (Government originally asked for 2% of NYC capacity, for instance.) The costs go partly to subscribers, partly direct to government.

Note that the Feds did NOT get the right to ask to tap >1 number at a time, here -- the by then-arbitrary indication of phone number-as-place was maintained. This sacrifice was what the spooks and cops gave up in compromise.

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 and Secret Rooms in Central Offices

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.

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.

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 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

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

It's the sheer mass of information that provides utility. This demands that you search society at large, and the idea has recently 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 such concepts out in a legislatively enacted policy statement, delineating means of judicial review, disclosure, etc -- but there's no will. Current legal discourse ranges from the [http://www.law.columbia.edu/fac/Philip_Bobbitt][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 global war on terror (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; such rules are unconstitutionally vague. (If you're posing articulable risk, or doing something like driving a car, that's not true -- there's a reason for identification.) Is Lawson still good law? At the time it was decided, it wasn't necessary to show ID to get on an airplane, either. (Class discussion left this question open.)

Searches are moving from the person to the personality -- or their digital signature / cloud / what-have-you.

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, which isn't likely to get far as an argument...)

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 area demarcated as "home" 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 -- 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 / finishing the job. Technology made the 18th-century analogies mostly irrelevant before they arrived on the scene. The old 4th doctrine isn't solid any more, and it's not sure where the bottom is if you start scratching at the old stuff. A new framework will be necessary to have a meaningful discussion of privacy and constitutional law once the pendulum swings back, and the legislature decides to take up the cause again.

-- AlexMiddleton - 24 Jan 2008