Engaging Privacy and Information Technology in a Digital Age (2007) / Chapter Skim
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9 Privacy, Law Enforcement, and National Security
9 Privacy, Law Enforcement, and National Security
Pages 251-302
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From page 251... ...
Section 9.1 focuses on the uses of information technology in law enforcement and discusses the pressures that such uses place on individual privacy. Section 9.2 does the same for national security and intelligence.
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Law enforcement authorities have been known to start with "suspicious people" and then seek to discover what laws they might have broken, might be breaking, or might be planning to break. This is one of the rationales for certain kinds of undercover activity and is frequently regarded as more controversial.
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Such proceedings are governed by the laws and professional ethics that protect the privacy of the individual, and the inappropriate use (in a criminal context) of information gathered by law enforcement agencies can be balanced by judicial review.
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The sections that follow describe a number of technologies that allow law enforcement agencies expanded capabilities to observe, to listen, and to gather information about the population. Just as the ability to tap phone lines offered law enforcement new tools to gather evidence in the past century, so also these new technologies expand opportunities to discover breaches in the law, identify those responsible, and collect the evidence needed to prosecute.
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From page 255... ...
, but they are a starting point for knowing what must be analyzed and understood in this particular situation, and what decisions society will have to make with respect to the issues the vignettes raise. Whether it is used to see that a law has been or is being broken, to determine who broke the law, or to find a suspect for arrest, physical observation has historically been the main mechanism by which law enforcement agencies do their job.
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From page 256... ...
Indeed, given the right monitoring equipment and enough recording space, it is even possible that the locations of every person for much of a lifetime could be made available to law enforcement agencies or even family members or researchers. Similar issues regarding data reuse arise with respect to the use of video cameras for the enforcement of traffic regulations.
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From page 257... ...
Further, when the images are stored, law enforcement agencies gain the capability to track what individuals have done in the past, and not just what they are currently doing. The worry is that once the information has been gathered and stored, it will be used in a variety of ways other than that for which it was originally intended.
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From page 258... ...
Such a prospect, combined with the temporally permanent nature of the data when they are stored, appears to give law enforcement agencies the ability to constantly monitor almost any place and to have access to a history of that 5A number of court cases have been brought addressing the question of whether the use of a thermal-imaging device aimed at a private home from a public street to detect relative amounts of heat within the home constitutes a "search" within the meaning of the Fourth Amendment. The definitive ruling on this point is the decision of the U.S.
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From page 259... ...
(Even today, modern cell phones with location identification capabilities yield information about the whereabouts of individuals, because of the generally unviolated presumption that individuals carry their cell phones with them.) 9.1.3 Communications and Data Storage Both communication and data storage technologies have long been of interest and use to the law enforcement community.
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Although the Supreme Court has not directly addressed the constitutionality of mail covers (the Court has denied certiorari in cases involving the issue) , lower courts have uniformly upheld the use of mail covers as consistent with the requirements of the Fourth Amendment.
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, the U.S. Supreme Court held that "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.
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On that basis, they have argued that law enforcement agencies should have legal access to such information equivalent to that available for telephone conversations. Law enforcement officials currently have access to pen registers and trap-and-trace registers on telephone calls, which show what calls were made from a particular phone (pen registers)
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that is available only from a judge. Thus, grounding privacy protection in technology eliminates or reduces the need to trust law enforcement authorities to respect privacy rights of law-abiding citizens, and advocates of this position often justify their position by references to past government violations of privacy.
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and over encryption. CALEA required that telecommunications providers build into their networks and switching systems the capability to provide the contents of voice communications to law enforcement authorities (subject to all of the existing restrictions on such wiretaps imposed by law)
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In the case of encryption, the past 20 years have seen a revolution in easy access to encryption technology, and easy access to high-grade cryp
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Law enforcement authorities have expressed concerns that the use of encryption by criminals would stymie access to communications and records important to prosecution. A problem arises because encryption is also a tool that can be used to prevent many crimes -- theft of proprietary data, identity theft, non-authorized wiretapping, and so on.
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PRIVACY, LAW ENFORCEMENT, AND NATIONAL SECURITY BOX 9.2 Encryption For many years, strong encryption algorithms were the property and province of government, since the ability to generate good encryption algorithms and to build the machinery to employ those algorithms was prohibitively expensive for most corporations, let alone individuals. However, the combination of much faster computing machinery and the development of public-key cryptosystems (along with the expanded interest in other cryptographic systems)
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From page 268... ...
standard of eligibility, but rather full-fledged identification, where the task is to determine, often in the face of falsified evidence or testimony, a person's true identity.12 The second complicating factor is that law enforcement can seek to identify a subject at various times during an investigation, using different types of evidence. Such evidence might be the reports of an eyewitness or might involve more circumstantial evidence (such as the use of a computer or cell phone at a particular time)
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From page 269... ...
Other biometrics that can aid in uniquely identifying a person, such as palm prints or retinal scanning, are being investigated as mechanisms to ensure the identity of a person, both by law enforcement agencies and to aid in the control of access to secure areas. None of these forms of identification is foolproof, with some (like fingerprints and DNA profiling)
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In addition, there have been few real tests of the efficacy of facial recognition technology in the kinds of environments that are of most interest to law enforcement agencies that have not been conducted by self-interested parties (e.g., the vendors of such technology)
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9.1.5 Aggregation and Data Mining Databases, generally in paper format, have long been created and maintained on the habits, histories, and identifying characteristics of those who have been arrested, convicted of breaking laws, or are otherwise considered by law enforcement agencies to be a "person of interest." For example, collections of fingerprints of individuals have been assembled and kept at both the local and national level since the early parts of the 20th century, when it was determined that identification by fingerprint could be used in linking individuals to violations and in locating them for arrest and trial. Computers were adopted early by law enforcement agencies in order to improve their ability to collect, collate, manipulate, and share information.
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But the vast majority of the information gathered and stored by third parties (such as banks or other financial institutions) has been determined by the courts and legislation not to be private records and is routinely available to law enforcement agencies.
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In fact, very little technology exists that allows the automatic conversion of the kinds of raw data collected by the sophisticated sensors discussed above into a format that permits the data to be mined or otherwise collated. If law enforcement agencies have the raw data (in the form of, say, video images from cameras in public places)
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From page 274... ...
But even this seemingly simpler process cannot be executed with the level of fidelity needed for law enforcement purposes, which requires human mediation in the recognition of which car was pictured. The ability of the police to reconstruct movements of a person of interest has been misconstrued by many as an indication that law enforcement agencies can follow the movements of anyone in an ongoing fashion.
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Gathering, storing, and analyzing extensive information are vital to the law enforcement process, even though some information will also be gathered about persons who are manifestly beyond suspicion. Privacy concerns arise most clearly when law enforcement agencies gather information about those who have broken no law and are not suspects, or when such information is used for purposes other than the discovery or prosecution of criminals, or when the very process of gathering the information or the knowledge that such information is being gathered changes the behavior of those who are clearly innocent and above reproach.
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Such a view holds that these government agencies are well intentioned and therefore will not use the information gathered for illicit or mischievous purposes. The laws that exist ensure that abuses cannot be used against the citizen even if they do occur.
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Such data-gathering activity differs in several respects from similar activities performed for law enforcement, notably in the procedures that must be followed, the oversight that constrains the intelligence agencies, and the ability of those about whom data is gathered to view and amend or correct that data. 9.2.1 Background The general category of national security comprises many functions of government, including those performed by the armed forces and federal law enforcement agencies.
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While law enforcement data gathering may be reviewed by other agencies and confined to active investigations, intelligence agencies are not required to demonstrate in advance the potential relevance of the information they gather. Instead, such agencies often try to compile as much information as possible that might be potentially relevant to their tasks, and then analyze all of that data in an attempt to define and describe potential adversaries.
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From page 279... ...
There is a common belief that the more the ability to gather information is constrained, the more likely it is that information of potential relevance to national security will be lost or overlooked.18 This tension, like its counterpart in the realm of law enforcement, is as old as the republic. What has changed is the technology of information gathering and analysis that can be used by the intelligence agencies.
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codes could not be broken, the intelligence community has directly developed, collaborated in the development, or funded the development of much of the current information infrastructure. Many of the technologies that are used to gather, sift, and collate data were developed initially by the intelligence agencies either for the purposes of cryptography or to allow them to sift through the vast amounts of information that they gather to find patterns for interpretation.
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When it comes to information gathering, even citizens have few rights to object to the placement of their sensitive personal information into a government database, regardless of whether the information is obtained legally or illegally.22 However, even in cases where such an objection is raised, it is not clear that the citizens have any recourse on the gathering of that information. If that is true for citizens, it is at least equally true for non-citizens, even those who have long and lawfully resided in the United States.
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foreign intelligence agencies possessed such domestic authority. In this regard, as with the limits placed on the law enforcement agencies, the United States is somewhat different from other countries.
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Since the intelligence process depends on gathering information, one premise of the current system is that the entities whose information is being obtained do not know the extent of what is known about them or the sources of that information. Thus the FISA law forbids any person upon whom a FISA Court subpoena is served from disclosing that fact to anyone other than a colleague or subordinate whose involvement is vital to obtain the subpoenaed information.23 Moreover, the FISA procedure for information gathering differs sharply from what is allowed under standard law enforcement search and seizure rules.
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Gathering information on such persons had been generally forbidden except in aid of law enforcement or if a person was determined to be an agent of a foreign power. This meant that the gathering of information could happen only in an attempt to investigate the breaking of a particular law, and the obtaining of information was subject to the kinds of restrictions and third-party judicial reviews that have characterized law enforcement information gathering.
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Finally, the USA PATRIOT Act Additional Reauthorizing Amendments Act of 2006 establishes a judicial review procedure for Section 215 nondisclosure orders that allows recipients of a Section 215 production order to challenge the nondisclosure requirement 1 year after the issuance of the production order. In response to such a challenge, the FISA Court judge has the discretion to modify or set aside a nondisclosure order, unless the attorney general, deputy attorney general, an assistant attorney general, or the director of the FBI certifies that disclosure may endanger the national 24 This discussion of the USA PATRIOT Act's impact on FISA is based on Charles Doyle, "The USA PATRIOT Act: A Sketch," Order Code RS 21203, Congressional Research Service, Washington, D.C., April 18, 2002.
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The success of the September 11, 2001, attacks has been seen by many as a result of the distinction drawn between law enforcement and intelligence gathering; in this view if all of the relevant information held by both the law enforcement agencies (such as the FBI) and the intelligence community had been put together and seen correctly, the attacks could have been predicted and stopped.
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From page 287... ...
However, the goals were always centered on developing and providing technology that would allow the detection and tracking of terrorist or suspected terrorist activities by aggregating data that are collected by both government and non-government agencies and then mining that data to find patterns of behavior that are highly correlated with future terrorist actions. A full analysis of the privacy implications of the TIA program has appeared elsewhere and is not repeated here.28 The point that is important to make is that one of the legacies of the September 11 attacks is the willingness of the intelligence agencies charged with the national defense to gather information about U.S.
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Addition ally, the New York Times did not release the story for over a year at the request of the administration for national security concerns.
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6 James Risen and Eric Lichtblau, "Spy Agency Mined Vast Data Trove," New York Times, December 24, 2005, available at http://www.nytimes.com/2005/12/24/politics/24spy. html?
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To allow a program to use both da tabases requires some form of data integration, which in turn requires converting one While the USA PATRIOT Act, the warrantless National Security Agency surveillance of certain U.S. persons, and the Total Information Awareness program are perhaps the most obvious examples of changes in law and attitude on the balance between privacy and national security after the events of September 11, they are hardly the only examples.
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One problem with such watch lists, as they now appear to be implemented, is that it is difficult to find out if a particular person has been placed on such a list and, if placed on the list, to find out the information that caused that placement. There is no formal mechanism for challenging either the placement on the list or
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Second, most of the information gathered by law enforcement and used to prosecute a person for the violation of a law will eventually be made public, along with the mechanisms used to gather that information. Intelligence gathering 29 Rachel L
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The information gathered must remain secret, and so there is no easy way to know what information is gathered, if that information is accurate, whether it might be subject to different interpretations, or how to correct the information if it is inaccurate or incomplete. The only thing known with certainty is that there is an entity that is capable of gathering information about foreign governments, and it is reasonable to presume that such an entity can easily gather information about private citizens in the United States.
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law enforcement authorities in carrying out the presidentially ordered internment 31 One exception is that the USA PATRIOT Act of 2001 allows the attorney general to ob tain a court order directing the Department of Education to provide to the Department of Justice data collected by the National Center for Education Statistics (NCES) if such data are relevant to an authorized investigation or prosecution of an offense concerning national or international terrorism.
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First, whether or not the Census Bureau provided information on individuals, the use of census data violated the spirit of the confidentiality law in the sense that respondents provided information under promises of confidentiality33 -- information that was subsequently used against them. Second, Capt's remarks suggest a willingness to exploit legal loopholes in order to cooperate with the internment order.
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There is no way for law enforcement and national security agencies to determine about whom they should gather information without requiring that these agencies also know the future. The conundrum is further accentuated by a declaratory national policy that emphasizes prevention of terrorist attacks rather than prosecution or retaliation after they occur.
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From page 297... ...
As an illustration of the sentiment, Harvard Law School Professor William Stuntz has asserted that "reasonable people can differ about the balance, but one could plausibly conclude that the efficiency gains from profiling outweigh the harm from the ethnic tax that post-September 11 policing is imposing on young men of Middle Eastern origin."34 The flip side of this sentiment, of course, is that community involvement and good will may well be an essential element, perhaps the most important element, of a strategy that seeks to counter terrorists concealing themselves in the nation's communities. That is, tips about unusual and suspicious behavior are most likely to emerge when the communities in which terrorists are embedded are allied with, or at least not suspicious of, law enforcement authorities -- and singling out young men of Middle Eastern origin for special scrutiny is not an approach that will create a large amount of good will in the affected communities.
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Nevertheless, the concern from the privacy advocates remains regarding the extent to which privacy considerations are taken into account, and the specific nature of the privacy-driven system or program adaptations. BOX 9.5 The Department of Homeland Security Privacy Impact Assessment A privacy impact assessment (PIA)
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Providing recourse for citizens improperly treated by government authorities is generally thought to make government authorities more careful and more respectful of rights than they might otherwise be. a combination of gender, race, birth date, geographic indicator, and any information that reasonably can be foreseen as being linked with other information to identify an individual.
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00 ENGAGING PRIVACY AND INFORMATION TECHNOLOGY IN A DIGITAL AGE BOX 9.5 Continued known areas of note, concern, or pattern (sometimes referred to as "data mining")
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0 PRIVACY, LAW ENFORCEMENT, AND NATIONAL SECURITY 6.3 o individuals have the right to consent to particular uses of the informa D tion, and if so, how does the individual exercise the right? 6.4 rivacy Impact Analysis: Given the notice provided to individuals above, P describe what privacy risks were identified and how they were mitigated.
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