Constructing a Theoretical Model for the Evolution of Law Relating to Telecommunication Privacy Vis-à-Vis Law Enforcemen

1. Constructing a Theoretical Model for the Evolution of Law Relating to Telecommunication Privacy Vis-à-Vis Law Enforcement Surveillance In America A dissertation proposal donna Bair-Mundy

2. Structure of the presentation Research interest Impetus for study—Patriot Act Interception timeline ►Problem statement Research proposal—Methodology Theoretical foundation

3. Three main areas of interest Access by private citizens to information produced by and about federal govt. Information access Telecommunication privacy for individuals vis-à-vis federal government Law formulation Communic. privacy National security Physical security

4. Law as policy Development of law as a reflection of the process by which our society determines the boundary between public and private Constructing a theoretical model for this process

5. A major impetus… Viet Dinh Asst. Attorney General H.R. 2975 10/12/2001 S. 1510 10/11/2001 H.R. 3004 Financial Anti-Terrorism Act USA PATRIOT Act H.R. 3162 Public Law No. 107-56 Signed Oct. 26, 2001 by Pres. George W. Bush

6. The USA PATRIOT Act H.R. 3162 The Acronym Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

7. The USA PATRIOT Act H.R. 3162 The Purpose To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

8. The USA PATRIOT Act The Language SEC. 218. FOREIGN INTELLIGENCE INFORMATION. Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

9. The U.S. Code Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'. TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1804. Applications for court orders (7) a certification … (B) that the purpose of the surveillance is to obtain foreign intelligence information; (7) a certification … (B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

10. Federal Wiretapping Act 1968 The Omnibus Crime Control and Safe Streets Act of 1968 (“Federal Wiretapping Act”) U.S. Code 18 USC Section 2510 et seq. Federal Rules of Criminal Procedure Rule 41 Search and Seizure

11. FISA 1978 Foreign Intelligence Surveillance Act U.S. Code 50 USC Sections 1801-1863

12. Investigative powers in US Code 1968 Federal Wiretapping Act 1978 Foreign Intelligence Surveillance Act

13. The USA PATRIOT Act The Complaints—Freedom of Speech Section 215—Amending FISA 501(d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

14. The USA PATRIOT Act The Complaints—Other Civil Liberties Freedom of association Right to due process Freedom to read

15. Justice Louis Brandeis “Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” Olmstead v. United States (dissent)

16. Identifying the Problem: the Communication interception timeline Conviction upheld 1928 Olmstead 1942 Goldstein W 1942 Goldman D 1952 On Lee W R 1937/1938 Nardone W 1961 Silverman 1967 Katz S E Wiretapping evidence disallowed

17. Communication interception timeline Conviction upheld 1928 Olmstead 1942 Goldstein W 1942 Goldman D 1952 On Lee R W 1937/1938 Nardone W 1961 Silverman 1967 Katz S E Wiretapping evidence disallowed 1934 Radio Comm. Act

18. Federal Communications Act 1934 Section 605 No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.

19. Nardone “…the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that “no person” shall divulge or publish the message or its substance to “any person.” To recite the contents of the message in testimony before a court is to divulge the message. The conclusion that the act forbids such testimony seems to us unshaken by the government’s arguments.” Justice Roberts

20. Communication interception timeline Conviction upheld 1928 Olmstead 1942 Goldstein W 1942 Goldman D 1952 On Lee R W 1937/1938 Nardone W 1961 Silverman 1967 Katz S E Wiretapping evidence disallowed 1934 Radio Comm. Act

21. Problem statement: Looking at the continuing saga of legislation and case laws dealing with telecommunication privacy, from Olmstead through Katz, from the Wiretapping Act and FISA to the Patriot Act, how can we understand the process by which society, through its laws, defines the boundary between inviolate personal space and legitimate law enforcement surveillance activities?

22. Relevant situations for different research strategies Requires control over behavioral events? Focuses on contem-porary events? Form of research question Strategy Experiment How, why yes yes Who, what, where, how many Survey yes yes History How, why no no Case study How, why no yes Yin, Robert K. 1994. Case study research: design and methods. Thousand Oaks: Sage Publications.

23. Two parts of the dissertation Develop a model Case study: USA Patriot Act

24. Sources – Model development Legislation U.S. Supreme Court decisions Congressional Record Law review articles Corres- pondence Writings on Constitut. law

25. Sources – Patriot Act Congressional Record Law review articles Editorials Organizat. Web sites Opinion polls Interviews

26. Theoretical foundation Law Surveillance Privacy

27. Theoretical foundation Legal H.L.A. Hart – Penumbral case William Banks and M.E. Bowman – privacy v. national security Laurence Tribe – Constitutional models

28. Hart's penumbral case Law: No vehicles may be driven in the park. Park ? Is an airplane a vehicle? Hart, H.L.A. 1977. “Positivism and the separation of law and morals.” In The philosophy of law, edited by R.M. Dworkin, 17-37. London: Oxford University Press.

29. Is an airplane a vehicle? Methods of determination Determine everyday meaning of "vehicle" Meaning of "vehicle" in consensus of cases Take a standard case and arbitrarily select certain features (1) normally driven on land (2) capable of carrying a person (3) capable of being self-propelled

30. Hart's penumbral case Law: No vehicles may be driven in the park. Park Vehicle: (1) normally driven on land (2) capable of carrying a person (3) capable of being self-propelled Error of "formalism" or "literalism" X

31. Hart's penumbral case Law: No vehicles may be driven in the park. Park What are the social purposes of the law? X

32. Onset of wiretapping 1830s Telegraph invented 1870s Telephone invented 1960s Packet switching 1880s First reports of wiretaps in press Packet sniffers 1860s Wiretapping during Civil War

33. Olmstead v. United States (1928) AMENDMENT XVIII Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21. Section 1.After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

34. Olmstead v. United States (1928) Bootleggers >$176,000 per month Evidence against them was obtained by wiretapping Convicted of a conspiracy to violate the National Prohibition Act

35. Olmstead v. United States Question before the Court: Is warrantless wiretapping an illegal search and seizure and thus banned under the Fourth Amendment?

36. Fourth Amendment The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

37. Olmstead v. United States (1928) The reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment. Here those who intercepted the projected voices were not in the house of either party to the conversation. We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment. Mr. Chief Justice Taft

38. Olmstead v. United States (1928) Purpose of Fourth Amendment (Justice Taft) The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man’s house, his papers and effects; and to prevent their seizure against his will. … The Amendment itself shows that the search is to be of material things…. Mr. Chief Justice Taft

39. Olmstead v. United States (1928) Purpose of Fourth Amendment (Justice Brandeis in dissent) The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. … They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

40. Olmstead v. United States (1928) Purpose of Fourth Amendment (Justice Brandeis in dissent) They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Justice Brandeis

41. Banks and Bowman theoretical model Associate General Counsel for FBI Crisis Privacy National security Rights of the individual Survival of the group Banks, William C., and M.E. Bowman. 2000. Executive authority for national security surveillance. American University law review 50(1).

42. Oft-cited cases involving technology used to intercept communication Conviction upheld 1928 Olmstead 1942 Goldstein W 1942 Goldman D 1952 On Lee W R 1937/1938 Nardone W 1961 Silverman 1967 Katz S E ? WWII Wiretapping evidence disallowed “Red” scare

43. Laurence Tribe Models: the major alternatives for constitutional argument and decision Model I Separated & Divided Powers Model II Implied Limitations on Government Model V Preferred Rights Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

44. Model ISeparated & Divided Powers Legislative Executive Judicial Federal Primary protection for individual rights provided by the states. State Local Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

45. Model IIImplied Limitations on Gov’t Emphasis on preserving the “natural order” of society. Major role of the court was to restore natural order upset by state legislation. Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

46. Model II (Decline) Concern for the underprivileged No natural order to be restored Need for positive governmental intervention to alleviate suffering Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

47. Model VPreferred Rights Exclude governmental powers from certain spheres Identification of “preferred freedoms” Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

48. Model VPreferred Rights • Emphasis on rights of: • Communication and expression • Political participation • Religious autonomy • Privacy and personhood Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

49. Oft-cited cases involving technology used to intercept communication Conviction upheld Model V 1928 Olmstead 1942 Goldstein W 1942 Goldman D 1952 On Lee W R 1937/1938 Nardone W 1961 Silverman 1967 Katz S E Model II Wiretapping evidence disallowed

50. Theoretical foundation Surveillance Rule (1973) Foucault (1979) Giddens (1987) Dandeker (1990) Lyon (1994)