Book excerpt: 'Surveillance or Security' by Susan Landau
How far the ability of law enforcement and counterterrorism to penetrate communications should go hasn't been a theoretical discussion of our post-Sept. 11, 2001 era. In a new book, "Surveillance or Security," Susan Landau explores the line between electronic surveillance as a means of protecting security versus surveillance transforming into a security vulnerability itself.
FierceGovernmentIT is excerpting three sections from chapter 8 of the book; you can begin reading it here or download the entire excerpt as a .pdf file. Click here to read an Q&A we conducted with Landau.
Excerpted from "Surveillance or Security?: The Risks Posed by New Wiretapping Technologies" by Susan Landau, published by MIT Press in February 2010. Copyright 2010 Massachusetts Institute of Technology. All rights reserved.
8.6 New Forms of Surveillance Create Risks of Excessive Collection
The Bill of Rights serves to protect the people from potential excesses of the government, and the Fourth Amendment is present to protect against potential excesses of the state's police power. That philosophy underlies the tight restrictions on state wiretapping in Title III and FISA. The state is very powerful; its right to enter people 's homes and businesses would constitute trespass were it done by anyone else.
One does not need too many examples of corrupt or totalitarian states to understand the dangers of an unconstrained police force. Yale law professor Jed Rubenfeld has observed that the Fourth Amendment quite deliberately states that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated " (emphasis added). Security is the point of the Fourth Amendment, security of the people against excessive searches by the state. In the decades before the American Revolution, the British used writs of assistance to conduct searches, general warrants that were nonspecific as to person, place, or item to be searched and that could be arbitrarily extended wherever and however the British officers - or their appointees wanted them to be. Objections against excessive taxation fueled the American Revolution, but it was the "wanton exercise " of the writs that raised the ire of the colonists.
Anger against the writs of assistance began to rise in 1761. James Otis Jr. was at the time advocate general of the Boston Vice-Admiralty Court, but he resigned his position when the British asked him to defend the writs. Instead he argued in Boston's Old State House, " A man's house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. " Otis's speech reverberated over the next quarter century, greatly influencing the Fourth Amendment. As the ideas that became the Bill of Rights coalesced, the standard for search moved from a mere suspicion standard to the probable cause one present in the Fourth Amendment. As Rubenfeld points out, that stipulation provides the security ensured by the amendment.
Consider how the notion of security translates to the modern era. In a world where many of the most valuable pieces of property are bits, wiretapping is not simply a violation of privacy, it is a violation of security. When collection is excessive, it creates a greater security violation.
One way excessive collection can occur is through a lack of clarity on what data are being requested. With all its drawbacks, one value of CALEA was that it required a standardized format for the output to law enforcement. This meant that the hard questions were answered in a - somewhat - public discussion. What data was law enforcement requiring and how should it be received? In contrast, the pen-register statute does not define or standardize what network information constitutes dialing, signaling, addressing, or routing information. The result, according to Al Gidari, "is like a fire hose for the application. Manufacturers and carriers decided what was included when CALEA was standardized - and the result was still a lack of clarity in the various implementations. One manufacturer ' s solution did not realize that the data channel used to deliver pen register data would also capture and deliver SMS messages, a clear error because such messages are content, not pen register data. "
Even when just pen-register information is supplied, there are risks. Transactional information is remarkably revelatory. It can be so at a personal level; one systems administrator, for example, read-protected his email logs because of a love triangle within his user community, which led one person to monitor the email traffic of the other two. Transactional information can also reveal economic information. Anyone studying the communication patterns between the management of Sun Microsystems and Oracle during the week of April 13, 2009, could have easily discerned that an acquisition discussion was underway, 61 a discovery that would have been worth millions on the stock market - illegally obtained millions - had such a purchase been known in advance of the public announcement.
Since the September 11 attacks, the U.S. government has been highly enamored of the idea that the terrorists can be easily found by simply " connecting the dots " if sufficient data are collected and mined. It is unlikely that groups of terrorists can be determined solely on the basis of their communication patterns; such efforts are more likely to waste both time and investigative resources, as well as creating a source of risk. Recall that when Shishir Nagaraja examined seventeen hundred users on an email network, he concluded: "Since close to 80% of the population must be monitored to detect all the communities, it means that in the short run, government surveillance budgets are more likely to cause harm to privacy than to uncover hardened terrorist cells. "
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