Bulk Collection: Systematic Government Access to Private-Sector Data (1st Edition)

Privacy and Security

Article Snapshot

Author(s)

Fred H. Cate and James Dempsey

Source

Oxford University Press, 2017

Summary

Edward Snowden revealed that the United States government collects data from every phone call in the country. Governments worldwide routinely demand that private firms disclose information about their customers in bulk. Many of these surveillance programs are secret and lack oversight.

Policy Relevance

Policymakers should improve accountability for governmental uses of private-sector data. Firms should challenge unlawful governmental demands for access to customers’ information.

Main Points

  • National governments routinely demand that telecommunications companies and other private firms provide authorities with access to customers’ information in bulk.
     
  • German law is committed to privacy, but recent laws give police and intelligence agencies more access to personal data; German intelligence services have often collected data in cooperation with intelligence agencies in the United States.
     
  • The Canadian Charter of Rights and Freedoms usually requires police to have prior authorization before accessing personal information, but national security agencies are less regulated; a new oversight committee will potentially address concerns about information access.
     
  • Since the September 11 attacks, law enforcement authorities in the United States have expanded efforts to disrupt terrorist activities, making increasing use of private-sector data; more information is needed about how authorities interpret their statutory surveillance authority, and informal government practices.
     
  • The United States Supreme Court ruled that constitution does not require authorities to obtain a warrant to access information disclosed to a third party, meaning that there is no constitutional limit on government demands for customer information from private-sector firms.
     
  • Accountability for government use of private-sector data can be difficult to maintain; effective accountability has five essential elements.
     
    • Agency practices should be consistent with legal rules.
       
    • Tools such as audit trails, documentations, permission systems, and risk assessments should be designed in to agency processes.
       
    • Oversight should cover the collection, storage, access to, and analysis of data.
       
    • Transparency should be required, so the public knows the scope of government access.
       
    • Independent entities such as an ombudsman or courts should be empowered to require remedial action.
       
  • The Global Network Initiative has set down guidelines for private sector firms to follow in deciding if a government's demand for information is lawful.
     
    • Firms should interpret governmental demands for information narrowly.
       
    • Firms should ask for overly broad demands to be modified.
       
    • Firms should ask the government to make their demands in writing, clearly explaining the legal basis of the demand.
       
    • Firms should require government to follow established legal process.
       
    • Firms should challenge unlawful governmental demands in court.
       

 

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