The Cambridge Handbook of Surveillance Law

Privacy and Security and Innovation and Economic Growth

Article Snapshot

Author(s)

David C. Gray and Stephen E. Henderson

Source

David Gray and Stephen E. Henderson, eds., Cambridge University Press, 2017

Summary

Surveillance challenges policymakers to balance safety and stability with privacy and liberty. Changing technologies and social norms make this difficult. Regulators, legislators, business leaders, the public, and academics offer different perspectives on this problem.

Policy Relevance

Oversight of surveillance begins with constitutional provisions, but also must involve legislators and regulators.

Main Points

  • Surveillance law is based in national constitutions and international conventions, including the Fourth Amendment to the United States Constitution and Article 8 of the European Convention on Human Rights.
     
  • The publication of classified documents leaked by Edward Snowden in 2013 revealed surveillance programs of staggering breadth, including the storage of metadata from Americans’ domestic phone calls, and the collection of Internet messages and search histories.
     
  • New surveillance techniques such as location tracking and biometric analysis make the problems of surveillance law far more complicated.
     
    • Persons can be placed on “watch lists” of dangerous persons without a trial, and watch lists receive little oversight.
       
    • The courts should require police to show grounds to suspect an individual to access stored data that includes vast amounts of innocent messages.
       
    • Information from consumer devices connected to the Internet of Things is often sent on to government agencies.
       
  • Modern surveillance technologies play a key role in combatting crime and threats to national security; it would be undesirable to enact policies that would block modern surveillance entirely.
     
    • The Fourth Amendment does not mean that the police should be no more efficient today than in the eighteenth century.
       
    • Narrowly tailored surveillance should be used to investigate cyber harassment cases.
       
  • Because surveillance can support oppressive autocratic societies, “chill” online behavior, and threaten intellectual and social freedom, surveillance should be carefully regulated.
     
    • The “third party doctrine,” which allows the police to access information held by third parties such as banks without a warrant, is outdated.
       
    • Facial recognition technology makes it easy to identify people and who they are with, threatening freedom of association.
       
  • Nations regulate surveillance using many different institutions and rules.
     
    • Rulings from the European Court of Human Rights suggest that this court favors judicial oversight of surveillance, but other mechanisms are sometimes acceptable.
       
    • In the United States, steps were taken to control surveillance by the National Security Administration, but these measures are not enough.
       
  • The European Union (EU) regulates surveillance, but surveillance measures adopted to support “national security” are exempt from EU authority; this implies that EU data protection laws do not govern national intelligence services, making data protection meaningless.
     
  • Law enforcement agents cooperate across borders to gain access to data stored in other nations; requests for this data are governed by mutual legal assistance rules badly in need of reform.
     

 

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