Privacy Law Commons^™

Adapting U.S. Electronic Surveillance Laws, Policies, And Practices To Reflect Impending Technological Developments, Eric Manpearl

Catholic University Law Review

Intelligence collection must always evolve to meet technological developments. While the collection programs under Section 702 of the FISA Amendments Act of 2008 have produced a great deal of valuable intelligence over the last decade, the United States must begin to think about foreseeable technological developments and strategically consider how to conduct signals intelligence (SIGINT) collection in the future.

This Article identifies four technological trends that could significantly impact the way the United States conducts SIGINT. Individuals now have access to sophisticated technologies that formerly only governments seemed capable of creating, and this decentralization of capabilities will likely only increase …

Cybersurveillance In A Free Society, Russell L. Weaver

Russell L. Weaver

No abstract provided.

Bulk Biometric Metadata Collection, Margaret Hu

Scholarly Articles

Smart police body cameras and smart glasses worn by law enforcement increasingly reflect state-of-the-art surveillance technology, such as the integration of live-streaming video with facial recognition and artificial intelligence tools, including automated analytics. This Article explores how these emerging cybersurveillance technologies risk the potential for bulk biometric metadata collection. Such collection is likely to fall outside the scope of the types of bulk metadata collection protections regulated by the USA FREEDOM Act of 2015. The USA FREEDOM Act was intended to bring the practice of bulk telephony metadata collection conducted by the National Security Agency (“NSA”) under tighter regulation. In …

"I Want My File": Surveillance Data, Minimization, And Historical Accountability, Douglas Cox

University of Richmond Law Review

No abstract provided.

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

Taxonomy Of The Snowden Disclosures, Margaret Hu

Margaret Hu

This brief Essay offers a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just a careful inquiry into the legal and constitutional framework that guides the oversight of these programs. A close interrogation also requires a careful inquiry into the big data architecture that guides them. This inquiry includes examining the underlying theories of data science and the rationales …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

Cybersecurity And Law Enforcement: The Cutting Edge : Symposium, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Schrems And The Faa’S “Foreign Affairs” Prong: The Costs Of Reform, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Taxonomy Of The Snowden Disclosures, Margaret Hu

Washington and Lee Law Review

This brief Essay offers a proposed taxonomy of the Snowden Disclosures. An informed discussion on the legality and constitutionality of the emerging cybersurveillance and mass dataveillance programs revealed by former NSA contractor Edward Snowden necessitates the furtherance of cybersurveillance aptitude. This Essay contends, therefore, that a detailed examination of the Snowden disclosures requires not just a careful inquiry into the legal and constitutional framework that guides the oversight of these programs. A close interrogation also requires a careful inquiry into the big data architecture that guides them. This inquiry includes examining the underlying theories of data science and the rationales …

Standing And Covert Surveillance, Christopher Slobogin

Pepperdine Law Review

This Article describes and analyzes standing doctrine as it applies to covert government surveillance, focusing on practices thought to be conducted by the National Security Agency. Primarily because of its desire to avoid judicial incursions into the political process, the Supreme Court has construed its standing doctrine in a way that makes challenges to covert surveillance very difficult. Properly understood, however, such challenges do not call for judicial trenching on the power of the legislative and executive branches. Instead, they ask the courts to ensure that the political branches function properly. This political process theory of standing can rejuvenate the …

Trading Privacy For Angry Birds: A Call For Courts To Reevaluate Privacy Expectations In Modern Smartphones, Jeremy Andrew Ciarabellini

Seattle University Law Review

Of all the smartphone uses, the calling function is probably used the least. Rather, individuals more commonly use their smartphone for surfing the web, checking Facebook, and playing games. Highlighting the “smart” in smartphone, these phones often know more about their users’ daily activities than the users. Without requiring any sort of input, smartphones can tell the user how many steps they walk each day, when it is time to leave for work (also, of course, determining the traveling time with the most up-to-date traffic reports), and when an item recently ordered on Amazon will be delivered. Smartphone users may …

Internet Giants As Quasi-Governmental Actors And The Limits Of Contractual Consent, D. A. Jeremy Telman

Law Faculty Publications

Although the government’s data-mining program relied heavily on information and technology that the government received from private companies, relatively little of the public outrage generated by Edward Snowden’s revelations was directed at those private companies. We argue that the mystique of the Internet giants and the myth of contractual consent combine to mute criticisms that otherwise might be directed at the real data-mining masterminds. As a result, consumers are deemed to have consented to the use of their private information in ways that they would not agree to had they known the purposes to which their information would be put …

Cybersurveillance In A Free Society, Russell L. Weaver

Washington and Lee Law Review

No abstract provided.

Habeas Data: Comparative Constitutional Interventions From Latin America Against Neoliberal States Of Insecurity And Surveillance, Marc Tizoc Gonzalez

Chicago-Kent Law Review

To cultivate the next twenty years of LatCrit theory, praxis, and community, the afterword looks back to LatCrit’s Critical Global Classroom (2003–04) (CGC), an ABA-accredited summer study-abroad program. The CGC invited U.S. law students to study comparative constitutionalism, law and society, and truth and reconciliation movements while sojourning Chile, Argentina, and South Africa under the question: “Shall the recent history of the Global South become the imminent fate of the Global North?” While enrolled in the 2004 CGC, the author learned about the extraordinary constitutional writ of habeas data, which various Latin American countries adopted as they reconstituted their …

The Cycles Of Global Telecommunication Censorship And Surveillance, Jonathon Penney

Articles, Book Chapters, & Popular Press

Internet censorship and surveillance is on the rise globally and cyber-warfare increasing in scope and intensity. To help understand these new threats commentators have grasped at historical analogies often with little regard for historical complexity or international perspective. Unfortunately, helpful new works on telecommunications history have focused primarily on U.S. history with little focus on international developments. There is thus a need for further internationally oriented investigation of telecommunications technologies, and their history. This essay attempts to help fill that void, drawing on case studies wherein global telecommunications technologies have been disrupted or censored — telegram censorship and surveillance, high …

The Pclob On Human Rights & 702: Punt Or Long Game?, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Yale Symposium: Unpacking Nsa's Global Problem, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Of Relevance And Reform Under Section 215, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Surveillance, Speech Suppression And Degradation Of The Rule Of Law In The “Post-Democracy Electronic State”, David Barnhizer

David Barnhizer

None of us can claim the quality of original insight achieved by Alexis de Tocqueville in his early 19th Century classic Democracy in America in his observation that the “soft” repression of democracy was unlike that in any other political form. It is impossible to deny that we in the US, the United Kingdom and Western Europe are experiencing just such a “gentle” drift of the kind that Tocqueville describes, losing our democratic integrity amid an increasingly “pretend” democracy. He explained: “[T]he supreme power [of government] then extends its arm over the whole community. It covers the surface of society …

Electronic Privacy Information Center V. National Security Agency: How Glomar Responses Benefit Businesses And Provide An Epic Blow To Individuals, Joshua R. Chazen

Journal of Business & Technology Law

No abstract provided.

Digital Security In The Expository Society: Spectacle, Surveillance, And Exhibition In The Neoliberal Age Of Big Data, Bernard E. Harcourt

Faculty Scholarship

In 1827, Nicolaus Heinrich Julius, a professor at the University of Berlin, identified an important architectural mutation in nineteenth-century society that reflected a deep disruption in our technologies of knowledge and a profound transformation in relations of power across society: Antiquity, Julius observed, had discovered the architectural form of the spectacle; but modern times had operated a fundamental shift from spectacle to surveillance. Michel Foucault would elaborate this insight in his 1973 Collège de France lectures on The Punitive Society, where he would declare: “[T]his is precisely what happens in the modern era: the reversal of the spectacle into surveillance…. …

Nothing To Fear Or Nowhere To Hide: Competing Visions Of The Nsa's 215 Program, Susan Freiwald

Susan Freiwald

Despite Intelligence Community leaders’ assurances, the detailed knowledge of the NSA metadata program (the 215 program) that flowed from the Snowden revelations did not assuage concerns about the program. Three groups, the American Civil Liberties Union, the Electronic Frontier Foundation, and the Electronic Privacy Information Center, brought immediate legal challenges with mixed results in the lower courts. The conflict, in the courts, Congress, and the press, has revealed that the proponents and opponents of Section 215 view the program in diametrically opposed ways. Program proponents see a vital intelligence program operating within legal limits, which has suffered a few compliance …

Judge Pauley’S Opinion In Clapper: Reset Button For Bulk Collection Debate?, Peter Margulies

Law Faculty Scholarship

This article was originally found in Lawfare, available here: https://www.lawfareblog.com/judge-pauleys-opinion-clapper-reset-button-bulk-collection-debate

Desperately Seeking Substance (Not Slogans) In Review Group Report On Nsa Surveillance, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Fixing Fisa For Long War: Regulating Warrantless Surveillance In The Age Of Terrorism, Adam Burton

The University of New Hampshire Law Review

[Excerpt] “The English poet W.H. Auden once claimed that “Peeping Toms are never praised, like novelists or bird watchers, for the keenness of their observations.” Perhaps Auden would have modified his maxim had he lived in the age of terrorism. A certain degree of government surveillance of even intimate communications is expected, encouraged, and indeed praised when the government’s efforts lead to the prevention of catastrophe. However, it is also expected that the government will minimize these intrusions, will conduct surveillance only on legitimate targets, and will follow the procedural safeguards that the representatives of the people have enacted in …