Neil Richards Tackles Secret Government Searches

By TAP Staff Blogger

Posted on May 10, 2017


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What is the best way to balance privacy concerns against the need for security in the digital age?

 

Leading experts consider the future of the Fourth Amendment in the digital age, reflect on the challenges that new technologies pose to privacy and security, and tackle one of the most important legal challenges of the digital age—how to protect privacy and security in the era of cloud computing.

 

Earlier this week, the National Constitution Center (NCC) published a series of five white papers, entitled A Twenty-First Century Framework for Digital Privacy. The contributors represent diverse points of view and experiences, and their papers reflect the Constitution Center’s commitment to presenting the best arguments on all sides of the constitutional issues at the center of American life. The series is intended help educate and encourage a dialogue on the national importance of the legal and policy issues associated with lawful access to data, and privacy in the digital world.

 

TAP scholar Neil Richards is one of the contributors. In his article, “Secret Government Searches and Digital Civil Liberties,” Professor Richards tackles the issue government surveillance that remain secret to the search target. Below are excerpts from the introduction:

 

Today, the U.S. government has a wide variety of means of secretly watching and searching the people who live in the United States, whether they are citizens, permanent residents, or visitors.

 

How did we get to a place where secret government surveillance seems both omnipresent and unavoidable? It may be hard to believe these days, but when the Internet first jumped into the public consciousness in the mid-1990s, it was touted as a realm of anarchy and personal empowerment, a tool of freedom rather than of oppression. At the time, the specter of always-on secret surveillance was unthinkable for a variety of technical, political, and legal reasons.

 

From a technological perspective, the [911] attacks occurred just after the mass adoption of the Internet, and just before the social media and smartphone phases of the digital revolution. These advances and adoptions, running on a stream of previously uncollected personal data, made it technically possible for the government to read a person’s emails or documents stored in the cloud, or obtain a minutely-detailed transcript of their location logged from the GPS chip in their phone. At the same time, these new technologies started to blur the lines between public and private, destabilizing settled legal understandings of the boundaries between what was private and what was not. In this environment, law enforcement often took the position that in doing their job of promoting security, it was better to ask for forgiveness than permission in attacking the newly-available digital evidence.

 

Yet despite the growth of the surveillance-industrial complex, there are hopeful signs. Apple and Microsoft, among other technology companies, have engaged in high-profile litigation with the federal government on behalf of their users’ privacy, including litigation over the security of iPhones and the government’s ability to place gag orders on its searches of Microsoft’s cloud and email services.

 

The result of these changes is the rise of a phenomenon I shall call the “secret government search.” This is, as the name suggests, a search by law enforcement of information relating to an individual. Secret government searches can be diverse—they can be physical or increasingly digital; they can be executed under a warrant, under no warrant, or under some intermediate authorization; they can be unknown to all, or served on a trusted digital service accompanied by an injunction forbidding notice to the target; and the target may get delayed notice of the search or no notice ever. Different kinds of secret government searches can raise different problems, and these problems may require different solutions. But at bottom, secret government searches share the essential characteristic of being government surveillance of which the target has no notice at the time of the search.

 

In this essay, I attempt to put the rise of secret government searches into context—historical, technological, and most importantly constitutional. My argument is straightforward—the current state of secret government searches is a dangerous anomaly in our democratic order. It is unprecedented as a technological and historical matter, and it is inconsistent with what I believe is the best reading of our constitutional traditions protecting freedom of thought, freedom of expression, and freedom from unreasonable searches and seizures. If we are to faithfully translate our hard-won civil liberties against the state from the physical realm to the digital, we need to do better to limit the ability of the government to peer into the lives of its citizens in ways that are not only secret but also relatively unconstrained.

 

Read the entire article, “Secret Government Searches and Digital Civil Liberties.”

 

The four other contributors to the “Twenty-First Century Framework for Digital Privacy” series include:

 
  • Jennifer Daskal, Associate Professor of Law at American University
    Whose Law Governs in a Borderless World? Law Enforcement Access to Data Across Borders
    Explores the challenges posed by data mobility and considers how best to resolve cross-border data disputes in a way that promotes privacy, security, and sovereignty.
     
  • Jim Harper, Vice President of the Competitive Enterprise Institute
    Administering the Fourth Amendment in the Digital Age
    Critiques current Fourth Amendment doctrine and calls on courts to adopt a new approach that hews closely to the Fourth Amendment’s text and protects data, information, and communications as a key form of property.
     
  • David Kris, former Assistant Attorney General for National Security
    Digital Divergence
    Challenges the view that balancing privacy and security in the digital age is a zero-sum game; and explores how advances in digital technologies are threatening both privacy and security.
     
  • Christopher Slobogin, Milton R. Underwood Chair in Law at Vanderbilt University
    Policing and The Cloud
    Explores how best to construct legal approaches that will allow the government to harness The Cloud’s investigative potential, while also limiting the opportunities for government abuses.
     
 

This evening (May 10, 2017), the National Constitution Center will discuss the white papers. The event will also include a keynote speech entitled “What Would Brandeis Do in the Digital Age?” by Jeffrey Rosen, National Constitution Center President and CEO and law professor at George Washington University.

 

The discussion will be livestreamed on the NCC’s website at constitutioncenter.org/live.

 

A note about sponsorship: the Microsoft Corporation has provided financial support for the “Twenty-First Century Framework for Digital Privacy” series. While Microsoft supported the development of this series, the NCC and the authors maintained complete editorial control in the writing of the material.

 

Microsoft is also the sponsor of this TAP website, providing administrative and financial support for the site’s platform and content. Microsoft respects academic freedom; thus, there is no payment made for appearing or blogging on the site. Scholars and academic institutions featured on the site have direct access to make content changes.

 


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