The constitution in the national surveillance state

Minnesota Law Review

Volumn 93, Issue 1, 2008, Pages 1-25

  Balkint, Jack M ^a  

^a YALE UNIVERSITY   (United States)

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EID: 58149292014     PISSN: 00265535     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (179)

1. James Risen, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 15, 2007, at Al.
2. See generally JAMES RISEN, STATE OF WAR: THE SECRET HISTORY OF THE CIA AND THE BUSH ADMINISTRATION 39-60 (2006).
3. On January 17, 2007, Attorney General Gonzales wrote to Senators Patrick Leahy and Arlen Specter, respectively the Chairman and Ranking Minority Member of the Senate Judiciary Committee, stating that the administration would conduct the Terrorist Surveillance Program under the approval of the Foreign Intelligence Surveillance Court using new "complex" and "innovative" court orders. Letter from Alberto R. Gonzales, Attorney Gen., to Patrick Leahy and Arlen Specter, Senators (Jan. 17, 2007), available at http://www.talkingpointsmemo.com/docs/nsa-doj-surveillance/.
4. Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 26 (1978) (codified as amended in scattered sections of 50 U.S.C.).
5. On the variety of NSA domestic surveillance programs, which blur the line between domestic and foreign intelligence, see Siobhan Gorman, NSA's Domestic Spying Grows As Agency Sweeps Up Data, WALL ST. J., Mar. 10, 2008, at Al (describing the NSA's monitoring of a wide range of personal data from credit card transactions and e-mail to Internet searches and travel records, as well as "an ad-hoc collection of so-called 'black programs' whose existence is undisclosed").
6. Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552 (2007).
7. Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436, 2437-78 (2008) (to be codified in 50 U.S.C. §§ 1801-12).
8. §§ 801-04, 122 Stat. 2467-70.
9. Cara Buckley, Police Plan Web of Surveillance for Downtown, N.Y. TIMES, July 9, 2007, at Al.
10. Id.
11. Id.
12. See Michael McCahill & Clive Norris, CCTV in London 6-11 (Urba-neye, Ctr. For Criminology and Criminal Justice, Univ. of Hull, Working Paper No. 6, 2002), available at http://www.urbaneye.net/results/ ue-wp6.pdf;
13. SURVEILLANCE STUDIES NETWORK, A REPORT ON THE SURVEILLANCE SOCIETY (2006), http://www.ico.gov.uk/ upload/documents/library/data-protection/practical-application/ surveillance-society-full-report-2006.pdf;
14. Manav Tan-neeru, 'Ring of Steel' Coming to New York, CNN, Aug. 3, 2007, http://www.cnn.com/2007/TECH/08/01/nyc.surveillance/index.html.
15. See Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity, 82 TEX. L. REV. 1349, 1351-52 (2004) (noting the proliferation of cameras in New York, Baltimore, Washington, D.C., and Chicago).
16. Charlie Savage, United States Doles Out Millions for Street Cameras,BOSTON GLOBE, Aug. 12, 2007, at Al ("Since 2003, the Department has handed out some $23 billion in federal grants to local governments for equipment and training to help combat terrorism ⋯ [including] millions on surveillance cameras, transforming city streets and parks into places under constant observation.").
17. Jack m. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489, 490 (2006).
18. See Andrew Cohen, The Legal War on Terror: White House Describing Surveillance in Military Terms, CBS NEWS, Jan. 22, 2006, http://www.cbsnews.com/stories/2006/01/22/opinion/courtwatch/mainl227481.shtml.
19. Cf. James X. Dempsey & Lara m. Flint, Commercial Data and National Security, 72 GEO. WASH. L. REV. 1459, 1464-68 (2004).
20. See id. at 1468-69 (describing government use of privately collected data).
21. See generally U.S. GEN. ACCOUNTING OFFICE, GAO-04-548, dATA MINING: FEDERAL EFFORTS COVER A WIDE RANGE OF USES (2004), available at http://www.gao.gov/new.items/d04548.pdf [hereinafter U.S. gen. accounting office] (reporting widespread use of privately collected data).
22. See Balkin & Levinson, supra note 13, at 520-23.
23. See id. at 525-26;
24. see also Fred h. Cate, Government Data Mining: The Need for a Legal Framework, 43 HARV. C.R.-C.L. L. REV. 435, 440-44 (2008).
25. While surveillance is usually portrayed as a tool for social control, it is also a means by which governments respect and realize citizenship to the extent that it enables the implementation of the welfare state and the rights and benefits that go with it. As David Lyon explains: [T]he surveillance systems of advanced bureaucratic nation-states are not so much the repressive machines that pessimists imply, but the outcome of aspirations and strivings for citizenship. If government departments are to treat people equally, ⋯ then those people must be individually identified. To exercise the right to vote, one's name must appear on the electoral roll; to claim welfare benefits, personal details must be documented. Thus, ⋯ the individuation that treats people in their own right, rather than merely as members of families or communities, means "freedom from specific constraints but also greater opportunities for surveillance and control on the part of a centralized state." See DAVID LYON, THE ELECTRONIC EYE 32-33 (1994)
26. (quoting NICHOLAS AB-ERCROMBIE, SOVEREIGN INDIVIDUALS OF CAPITALISM (1994)). Governments, of course, have long been in the business of collecting and analyzing statistics to facilitate governance. The famous Domesday Book, commissioned in 1086 by William the Conqueror, sought to assess the land and resources owned in England to facilitate tax collection in order to raise the necessary capital to support armies in defense of the realm. It included exhaustive compilations of landholders, their tenants, the properties they owned, and their values both before and after the Conquest, thus providing a snapshot of the country's social and economic state.
27. See U. S. GEN. ACCOUNTING OFFICE, supra note 16, at 11;
28. Dempsey & Flint, supra note 15, at 1468-73 (describing government use of privately collected data).
29. Balkin & Levinson, supra note 13, at 520-23 ("The National Surveillance State arose from a number of different features whose effects are mutually reinforcing. The most obvious causes are changes in how nations conduct war and promote their national security ⋯. Equally important [however] ⋯ are new technologies of surveillance, data storage, and computation ⋯").
30. Although the Welfare State as a mode of governance is often identified with the New Deal, its techniques and mechanisms arose earlier. See generally THEDA SKOCPOL, PROTECTING SOLDIERS AND MOTHERS: THE POLITICAL ORIGINS OF SOCIAL POLICY IN THE UNITED STATES (1992) (rooting contemporary principles of social welfare policy in nineteenth-century pension benefits for veterans and their families);
31. STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES 1877-1920 (1982) (describing the development of parts of the machinery of the modern state in the era before the New Deal). On the constitutional problems posed by the welfare state,
32. see PAUL BREST ET AL., PROCESSES OF CONSTITUTIONAL DECISIONMAKING 1593-1800 (5th ed. 2006) (discussing constitutional disputes over rights to government services and benefits, unconstitutional conditions, and due process requirements);
33. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 174-205 (Sanford Levinson ed., 2d ed. 1994) (discussing the constitutional implications of the rise of the welfare state in the twentieth century; materials on the Welfare State written by Sanford Levin-son).
34. The National Security State arose in the wake of World War II in the context of the American struggle against the Soviet Union during the cold war. This required, among other things, substantial new investments in defense spending and military technology, the stationing of American forces around the world, and a new emphasis on intelligence capabilities. A characteristic piece of legislation is the National Security Act of 1947, Pub. L. No. 253, ch. 343, 61 Stat. 495 (codified as amended in scattered sections of 50 U.S.C.), which reorganized the military and intelligence services and created the Department of Defense, the National Security Council, and the Central Intelligence Agency. For historical accounts of the causes and growth of the National Security State, see MICHAEL J. HOGAN, A CROSS OF IRON: HARRY S. TRUMAN AND THE ORIGINS OF THE NATIONAL SECURITY STATE 1945-1954 (1998);
35. DANIEL YERGIN, SHATTERED PEACE: THE ORIGINS OF THE COLD WAR AND THE NATIONAL SECURITY STATE (1977).
36. For legal and constitutional accounts, see William M. Wiecek, America in the Post-War Years: Transition and Transformation, 50 SYRACUSE L. REV. 1203 (2000);
37. William M. Wiecek, The Legal Foundations of Domestic Anticommunism: The Background of Dennis v. United States, 2001 SUP. CT. REV. 375 (2001).
38. The United States government played an important role in promoting the development of data processing technology. A former office worker for the census, Herman Hollerith, invented the computer punch card to help tabulate statistics about populations in the United States. SIMSON GARFINKEL, DATABASE NATION: THE DEATH OF PRIVACY IN THE 21ST CENTURY 17 (2000). The tabulating machine company Hollerith founded eventually became known as the International Business Machine Company, or IBM. Id. at 18. The creation of the modern welfare state, with its vast array of new government employees and beneficiaries of government programs, created a demand for the services of IBM and similar companies, and the Social Security number eventually became a central identifier for the federal and state governments. Initially created to provide unique identifiers for all individuals collecting benefits, social security numbers were then adopted by many states for administration of income taxes, drivers licenses, student IDs, and library cards. Eventually the private sector began to use the numbers for consumer credit reporting.
39. Id. at 19-25, 33;
40. see also SOCIAL SECURITY ADMIN., PUBL'N. NO. 21-059, SOCIAL SECURITY: A BRIEF HISTORY (2007), available at www.ssa.gov/history/ pdf/2005pamphlet.pdf.
41. Similar developments occurred in Europe, as record-keeping requirements morphed from providing proof of identity to underpinning personal rights and governmental obligations, including pensions and allowances for families of military personnel. The expansion of the welfare state created a need for statistics to facilitate planning of delivery of social services, for letting citizens know about services available to them, for enforcing traffic laws, and for identifying criminal suspects. See Edward Higgs, The Rise of the Information State: The Development of Central State Surveillance of the Citizen in England, 1500-2000, 14 j. HIST. SOC. 175, 185-86 (2001).
42. See Cate, supra note 18, at 444-52.
43. See id. at 456-59.
44. See generally JEFFREY ROSEN, THE NAKED CROWD: RECLAIMING SECURITY AND FREEDOM IN AN ANXIOUS AGE (2004) (exploring the threats to privacy and promotion of social conformity through emerging surveillance technology).
45. See Internet Society, A Brief History of the Internet and Related Networks (2007), http://www.isoc.org/internet/history/cerf.shtml.
46. See Patricia L. Bellia, The Memory Gap in Surveillance Law, 75 U. CHI. L. REV. 137, 142-53 (2008) (describing trends which "make indefinite data retention feasible for businesses and individuals alike").
47. See, e.g., LAWRENCE A. GORDON ET AL., COMPUTER SECURITY INSTITUTE, COMPUTER CRIME AND SECURITY SURVEY 5-6 (2006), available at http://i.cmpnet.com/gocsi/db-area/pdfs/fbi/FBI2006.pdf.
48. See Dean E. Murphy, As Security Cameras Sprout, Someone's Always Watching, N.Y. TIMES, Sept. 29, 2002, at A33 ("The Security Industry Association estimates that at least two million closed-circuit television systems are in the United States. A survey of Manhattan in 1998 by the American Civil Liberties Union found 2,397 cameras fixed on places where people pass or gather, like stores and sidewalks. All but 270 were operated by private entities, the organization reported. CCS International, a company that provides security and monitoring services, calculated last year that the average person was recorded 73 to 75 times a day in New York City.").
49. see JAY STANLEY, AM. CIVIL LIBERTIES UNION, THE SURVEILLANCE- INDUSTRIAL COMPLEX: HOW THE AMERICAN GOVERNMENT IS CONSCRIPTING BUSINESSES AND INDIVIDUALS IN THE CONSTRUCTION OF A SURVEILLANCE SOCIETY 12, 26 (2004), available at http://www.aclu.org/ FilesPDFs/surveillance-report.pdf;
50. U.S. GEN. ACCOUNTING OFFICE, supra note 16, at 8-11.
51. See, e.g., ROBERT O'HARROW, JR., NO PLACE TO HIDE 1-10 (2005) (detailing links of cooperation between private information collection industries and government);
52. Dempsey & Flint, supra note 15, at 1468-70 (noting government use of commercial data for intelligence and counterterrorism purposes).
53. Communications Assistance for Law Enforcement Act of 1994 (CA-LEA), Pub. L. No. 103-414, 108 Stat. 4279 (codified at 47 U.S.C. §§ 1001-10 (2006)). CALEA mandates that telecommunications services design their technology so it can be wiretapped by the government pursuant to a lawful authorization or a court order, in a manner which enables the government to access call-identifying information, and which allows the transmission of the intercepted information to the government. 47 U.S.C. § 1002(a)(1);
54. see Michael d. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, 8 VA. J.L. & TECH 6, para. 84 (2003);
55. Emily Hancock, CALEA: Does One Size Still Fit All?, in CYBERCRIME: DIGITAL COPS IN A NETWORKED ENVIRONMENT 184-203 (Jack M. Balkin et al. eds., 2007)
56. [hereinafter CYBERCRIME].
57. See Buckley, supra note 7 (describing coordination of public and private cameras in Lower Manhattan Security Initiative).
58. See Cate, supra note 18, at 435 (explaining how "advances in digital technology have greatly expanded the volume of personal data created as individuals engage in everday activities").
59. See, e.g., Verne Kopytoff, Google Now Has a Lot More To Do With Intelligence, S.F. CHRON., Mar. 30, 2008, at C6 (detailing Google's multiple services for the government). According to Kopytoff, Google's customers include not only the intelligence agencies, but also "the National Oceanographic and Atmospheric Administration, the U.S. Coast Guard, the National Highway Traffic Safety Administration, the State of Alabama and Washington d.C."
60. Id. It sells "virtually the same products to companies as it does to government agencies."
61. Id.;
62. see also ROSEN, supra note 26, at 108 (explaining how Silicon Valley companies work with the government to enable data collection techniques and other new technologies to serve government). Silicon Valley entrepreneurs, Rosen reports, are working toward a "killer app" useful for both business and for national security that "will allow government agencies to access and share information about Americans that is currently stored in different databases-from our chat-room gossip to our shopping history to our parking tickets, and perhaps even to our payment history for child-support checks."
63. Id. at 107.
64. For example, the FBI's InfraGard program seeks cooperation between government, business, and academia to protect computer networks and Internet infrastructure. InfraGard, About InfraGard, http://www.infragard.net/about.php? mn=l&sm=l-0 (last visited Oct. 14, 2008);
65. see also Current and Projected National Security Threats to the United States: Before the S. Select Comm. on Intelligence, 109th Cong. 33 (2005) (statement of Robert S. Mueller, III, Director, Fed. Bureau of Investigation), available at http://www.fbi.gov/congress/congress05/mueller021605.htm (describing a central mission of the FBI as "proactively target[ing] threats to the US, inhibiting them, and dissuading them before they become crimes").
66. E.g., PHILIP BOBBITT, TERROR AND CONSENT 55-57 (2008) (describing how new information technologies facilitate international terrorism).
67. See id.; GABRIEL WEIMANN, TERROR ON THE INTERNET 106 (2006) (describing Al Qaeda's use of the Internet);
68. Audrey Kurth Cronin, Behind the Curve: Globalization and International Terrorism, 27 INT'L SECURITY 30, 46-48 (2002-03) (explaining challenges created by changes in means, methods and organization of terrorist networks due to new technology);
69. Robert F. Worth, TheirSpace, N.Y. TIMES, June 25, 2006, at 21
70. (reviewing weimann, supra).
71. See BOBBITT, supra note 38, at 95;
72. Daniel E. Geer, Jr., The Physics of Digital Law: Searching for Counterintuitive Analogies, in CYBERCRIME, supra note 33, at 13-36.
73. See BOBBITT, supra note 38, at 55-57;
74. Scott Charney, The Internet, Law Enforcement, and Security, in 2 PRACTICING l. INST., FIFTH ANNUAL LAW INSTITUTE 943-44 (Ian C. Ballon et al. eds., 2001) (detailing the increasing vulnerabilities and threats to the state that are enabled by new technologies);
75. Geer, supra note 40 (noting basic problems of network security that facilitate attacks);
76. Doreen Carvajal, High-Tech Crime Is an Online Bubble That Hasn't Burst, N.Y. TIMES, Apr. 7, 2008, at C2.
77. See, e.g., O'HARROW, supra note 32, at 10 (noting that while America's technological capability could serve as a weapon abroad, its use could also "spin out of control" in the hands of enemies).
78. See BOBBITT, supra note 38, at 55-58.
79. See, e.g., Charney, supra note 41, at 944 (discussing the traditional model of law enforcement before the advent of new information technologies).
80. See Geer, supra note 40, at 14-15 (providing an overview of how computer security systems deal with risks posed by hackers).
81. See, e.g., Cate, supra note 18, at 442-44 (describing how the FBI uses various databases for law enforcement).
82. For descriptions of the "No Fly" and "Selectee" watch lists, see Transportation Security Administration (TSA): Frequently Asked Questions, http://www.tsa.gov/research/privacy/faqs.shtm (last visited Oct. 14, 2008);
83. Minutes: Unlikely Terrorists on No Fly List (CBS television broadcast Oct. 8, 2006), available at http://www.cbsnews.com/stories/ 2006/10/05/60minutes/ main2066624.shtml;
84. see also 49 U.S.C. § 114(h) (Supp. V 2006) (creating statutory authorization for creation of these passenger lists). These watch lists, in turn, are subsets of a much larger Terrorist Screening Database.
85. See Federal Bureau of Investigation, Terrorist Screening Center: Frequently Asked Questions, http://www.fbi.gov/terrorinfo/counterrorism/faqs.htm (last visited Oct.14, 2008).
86. The TSA has been working on a more elaborate system, the Secure Flight Screening Program, for some time. See Intelligence Reform and Terrorism Prevention Act of 2004 § 4012, 49 U.S.C. § 44903(j)(2)(A) (Supp. V 2006) (directing the Secretary of Transportation to "ensure that the Computer-Assisted Passenger Prescreening System, or any successor system-(i) is used to evaluate all passengers before they board an aircraft"). Its predecessor, the automated Computer-Assisted Passenger Prescreening System (CAPPS II), was suspended in August 2004 due to strong criticism, and was replaced by Secure Flight, whose implementation, in turn, has been delayed due to public criticism.
87. See, e.g., Aviation Security: Significant Management Challenges May Adversely Affect Implementation of the Transportation Security Administration's Secure Flight Program: Hearing Before the S. Comm. on Commerce, Science, and Transportation, 109th Cong. 8-11 (2006) (statement of Cathleen A. Berrick, Director, Homeland Security and Justice Issues), available at http://www.gao.gov/new.itenis/d06374t.pdf;
88. Matthew L. Wald & John Schwartz, Screening Plans Went Beyond Terrorism, N.Y. TIMES, Sept. 14, 2004, at A35 (detailing how the Department of Homeland Security attempted to expand the CAPPS II program to serve broader police purposes); Electronic Privacy Information Center, Spotlight on Surveillance: Secure Flight Should Remain Grounded Until Security and Privacy Problems Are Resolved (2007), http://epic.org/privacy/surveillance/ spotlight/0807/default.html.
89. As Nimrod Kozlovski explains: The new policing aims to prevent and preempt crime rather than to prosecute it. By predicting when, how, and by whom a crime will be committed, it aims to enable efficient intervention. Automated tools constantly monitor the environment to match users' risk profiles against dynamically identified patterns of criminal behavior. Patterns of previous computer crimes are coded as "crime signatures." These "signatures" ⋯ monitor for anomalies or deviations from "normal" behavior. The patterns of "normal" behavior are coded and an algorithm watches for a certain level of deviation from them. The systems aim to be able to disarm the attacker, redirect his actions to a "safe zone," block or modify his communication, or even strike back. Nimrod Kozlovski, Designing Accountable Online Policing, in CYBERCRIME, supra note 33, at 110.
90. See, e.g., Noah Shachtman, The New Security: Cameras That Never Forget Your Face, N.Y. TIMES, Jan. 25, 2006, at G6 (describing the use of facial recognition systems in New York City);
91. Grant Gross, Lockheed Wins 10-year FBI Biometric Contract, WASH. POST, Feb. 13, 2008, http://www washingtonpost.com/wp- dyn/content/article/2008/02/13/AR2008021301655-pf.html (detailing the rise of biometric systems).
92. See Dana Priest, Covert CIA Program Withstands New Furor, WASH. POST, Dec. 30, 2005, at Al (explaining the origins of interrogation program and "authorized techniques," such as waterboarding, hard slapping, isolation, sleep deprivation, liquid diets, and stress positions);
93. Brian Ross & Richard Esposito, CIA's Harsh Interrogation Techniques Described, ABC NEWS (Nov. 18, 2005), http://abcnews.go.com/WNT/Investigation/ story?id-1322866 (describing additional interrogation techniques-forced standing, hypothermia, and noise bombardment);
94. Associated Press, White House Defends Use of Waterboarding, MSNBC (Feb. 6, 2008), http://www.msnbc.msn.com/id/23030663/ (revealing that President had ordered waterboarding in the past and might do so again);
95. see also Dana Priest, Officials Relieved Secret Is Shared, WASH. POST, Sept. 7, 2006, at A17
96. [hereinafter Priest, Officials Relieved] (describing revelation of secret CIA black sites);
97. Jan Crawford Greenburg et al., Sources: Top Bush Advisors Approved 'Enhanced Interrogation,' ABC NEWS (Apr. 9, 2008), http://abcnews.go.com/TheLaw/ LawPolitics/story?id=4583256&page=l (describing how senior Bush administration officials discussed and approved "enhanced interrogation techniques" to be used against high-value detainees).
98. See generally MICHEL FOUCAULT, DISCIPLINE AND PUNISH 195-217 (Alan Sheridan trans., Pantheon Books 1977) (describing the rise of the disciplinary society).
99. See id. at 200-02 (discussing Bentham's idea of a Panopticon).
100. See Kozlovski, supra note 48, at 114 ("Investigators increasingly focus on 'noncontent' data such as traffic data and automated system logs, enabling them to create maps of associations, and to visualize non-trivial connections among events.");
101. Gorman, supra note 3 (explaining that NSA "now monitors ⋯ domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records" received from private companies or other agencies, which are analyzed for suspicious patterns).
102. See Gorman, supra note 3 (discussing social network analysis and other data analysis techniques).
103. See generally Dempsey & Flint, supra note 15, at 1464-66 (explaining pattern-based searching and link analysis).
104. See Eric Lichtblau, F.B.I. Data Mining Reached Beyond Initial Targets, N.Y. TIMES, Sept. 9, 2007, at Al (describing the practice of "link analysis").
105. See Dempsey & Flint, supra note 15, at 1464 (explaining that the point of data mining is to search "based on the premise that the planning of terrorist activity creates a pattern or 'signature' that can be found in the ocean of transactional data created in the course of everyday life");
106. Ira S. Rubinstein et al., Data Mining and Internet Profiling, Emerging Regulatory and Technological Approaches, 75 U. CHI. L. REV. 261, 261 (2007) ("[t]o identify and preempt terrorist activity, intelligence agencies have begun collecting, retaining, and analyzing voluminous and largely banal transactional information about the daily activities of hundreds of millions of people.");
107. Ellen Nakashima, From Casinos to Counterterrorism, WASH. POST, Oct. 22, 2007, at Al (describing data mining and surveillance techniques of casinos).
108. See Nakashima, supra note 56 (describing how a casino investigator can assemble a mosaic of visitor's moves for the past two weeks; this technology is used to better target high rollers for special treatment and others for promotions).
109. See NEW YORK CIVIL LIBERTIES UNION, WHO'S WATCHING?: VIDEO CAMERA SURVEILLANCE IN NEW YORK CLTY AND THE NEED FOR PUBLIC OVERSIGHT 7 (2006), http://www.nyclu.org/pdfs/surveillance-cams-report-121306.pdf (describing cameras today as having a "super-human" vision, including capabilities to tilt, pan, and rotate to better follow an individual, and capability to zoom to see the pages of a book or even a text message on a screen of a cell phone).
110. See Bellia, supra note 28, at 141 (describing trends toward an "architecture of perfect memory" where low cost of storing vast quantities of data and ease of conversion of nondigital information to digital form remove many of the incentives to destroy data, increasingly held by third parties);
111. Robert O'Harrow Jr. & Ellen Nakashima, National Dragnet Is a Click Away, WASH. POST, Mar. 6, 2008, at Al (reporting on the new N-DEx database intended to become a "one-stop shop" enabling federal law enforcement, counterterrorism and intelligence analysts to automatically examine the enormous caches of local and state records);
112. Walter Pincus, NSA Gave Other Agencies Info from Surveillance, WASH. POST, Dec. 31, 2005, at A8 ("Information captured by the National Security Agency's secret eavesdropping ⋯ has been passed on to other government agencies, which cross-check the information with tips and information collected in other databases ⋯.").
113. See Saul Hansell, U.S. Wants Internet Companies to Keep Web-Surfing Records, N.Y. TIMES, June 2, 2006, at A15 (reporting on Justice Department's request to Internet companies to retain records on the Web-surfing and email activities of their customers for up to two years);
114. O'Harrow & Nakashima, supra note 59 (describing commercial data-mining system used by police investigators to "find hidden relationships among suspects and instantly map links among people, places, and events");
115. Pincus, supra note 59 (revealing that other agencies used "records obtained from NSA in combination with wide-ranging databases to look for links and associations").
116. See Bellia, supra note 28, at 137-38, 148-49 (noting that our surveillance and information privacy laws say little about data retention and that much of what they say provides incentives for indefinite retention).
117. See Military Order No. 222, Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57,833 (Nov. 13, 2001) (ordering the detention of persons whom the President has reason to believe (1) are current or former members of al-Qaeda, (2) have engaged in, aided, abetted, or conspired to commit terrorist acts or are preparing to do so, or (3) have harbored such a person, and delegating the authority over trials of these individuals to military commissions under the purview of the Secretary of Defense); Brief for the Respondents at 16, Yaser Esam Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696) (justifying the detention of Hamdi, a United States citizen, as the capture of "a classic battlefield detainee").
118. See Priest, Officials Relieved, supra note 50 (reporting the CIA's assertion that it needed "to harshly interrogate prisoners to extract time-sensitive information about possible terrorists attacks");
119. David Stout, Rumsfeld Defends Plan to Hold War Detainees, N.Y. TIMES, Mar. 28, 2002, at A18 (reporting a statement of Defense Secretary Donald H. Rumsfeld that preventing Afghan war prisoners from returning to the battlefield was justification for a plan to hold some prisoners even if they were acquitted in military tribunals); Press Release, President George W. Bush, President Discusses Creation of Military Commissions to Try Suspected Terrorists (Sept. 6, 2006) (defending detention and interrogation practices necessary to gain intelligence to stop terrorist attacks and arguing that "we have an obligation to the American people, to detain these enemies and stop them from rejoining the battle").
120. See Letter from William E. Moschella, Assistant Attorney Gen., Dep't of Justice, to the Senate Select Comm. on Intelligence and House Permanent Select Comm. on Intelligence (Dec. 22, 2005),
121. reprinted in 81 IND. L.J. 1360, 1363 (2006) (characterizing communication intercepts by NSA as falling into a category of "special needs" outside the ordinary criminal process);
122. U.S. Dep't of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President (Jan. 19, 2006),
123. reprinted in 81 IND. L.J. 1374, 1410-12 (2006) [hereinafter Legal Authorities] ("[C]ollecting foreign intelligence is far removed from the ordinary criminal law enforcement action to which the warrant requirement is particularly suited.").
124. For discussions of "mission creep" in the use of data mining and surveillance technologies, see MARY DEROSA, CTR. FOR STRATEGIC AND INT'L STUDIES, DATA MINING AND DATA ANALYSIS FOR C OUNTERTERRORISM 16 (2004), http://www.cdt.org/security/usapatriot/ 20040300csis.pdf;
125. technology & Privacy Advisory Comm., Safeguarding Privacy in the Fight Against terrorism 39-40 (2004), available at http://www.cdt.org/ security/usapatriot/20040300tapac.pdf.
126. See Jack L. Goldsmith & Neal Katyal, Op-Ed., The Terrorists' Court, N.Y. TIMES, July 11, 2007, at A19 (proposing "a comprehensive system of preventive detention" overseen by a national security court, which could use evidence "too difficult to present in open civilian court without compromising intelligence sources and methods").
127. See Birnhack & Elkin-Koren, supra note 33, para. 41, 43 (explaining that online service providers are being recruited to serve governmental purposes because "they are not tied, nor restricted, to any national border" and because they are also "more flexible in watching online activities since they are not subject to the same scrutiny which applies to the State and its agents");
128. see also Laura K. Donohue, Anglo-American Privacy and Surveillance, 96 J. CRIM. L. & CRIMINOLOGY 1059, 1142 (2006) (listing the wide range of personal data traded by the private sector, access to which is also purchased by government agencies);
129. Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 320 (2008) ("[M]any [government] programs rely in whole or in part on private companies, called commercial data brokers, to provide their input, which is then analyzed by government officials.").
130. Cf. ALAN f. WESTIN, PRIVACY AND FREEDOM 23-26 (1967) (distinguishing between authoritarian and democratic models of privacy);
131. Lewis Mumford, Authoritarian and Democratic Technics, 5 TECH. & CULTURE 1, 1-8 (1964) (noting a long historical dialectic between "authoritarian" and "democratic" modes of technological development).
132. See WESTIN, supra note 68, at 23 ("The modern totalitarian state relies on secrecy for the regime, but high surveillance and disclosure for other groups.").
133. U.S. CONST, amend. IV.
134. See DANIEL J. SOLOVE, THE DIGITAL PERSON: TECHNOLOGY AND PRIVACY IN THE INFORMATION AGE 202 (2004) (noting that the Supreme Court has limited Fourth Amendment protections when faced with new practices and new technologies);
135. Paul Schwartz, Data Processing and Government Administration: The Failure of the American Legal Response to the Computer, 43 HASTINGS L.J. 1321, 1323 (1992) (arguing that the United States has failed to develop an appropriate law of data protection for the activist state);
136. cf. William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 YALE L.J. 393, 442, 444-46 (1995) (noting how strong privacy protections require strong limits on government and arguing that the rise of a powerful administrative state inevitably limited Fourth and Fifth Amendment protections).
137. See Smith v. Maryland, 442 U.S. 735, 742-43 (1979) (holding that
138. See, e.g., Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460-64 (5th Cir. 1994) (holding that stored e-mails not intercepted contemporaneously with transmission are not protected under federal privacy laws).
139. See Foreign Intelligence Surveillance Act, 50 U.S.C.A. §§ 1801-1811 (West 2002 & Supp. 2007), as amended by FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat. 2436 (2008);
140. see also United States v. Truong Dinh Hung, 629 F.2d 908, 913-15 & n.4 (4th Cir. 1980) (discussing the "foreign intelligence exception" to the Fourth Amendment);
141. United States v. Butenko, 494 F.2d 593, 604-05 (3d Cir. 1974) (en banc) (upholding presidential power to engage in warrantless surveillance to gather foreign intelligence information); United States v. Brown, 484 F.2d 418, 425-27 (5th Cir. 1973) (noting that the President may authorize wiretaps for the purpose of foreign surveillance);
142. In re Sealed Case, 310 F.3d 717, 737-46 (FISA Ct. Rev. 2002) (holding that a FISA provision permitting government to conduct surveillance of agent of foreign power, if foreign intelligence is a "significant purpose" of such surveillance, did not violate Fourth Amendment).
143. But cf. Zweibon v. Mitchell, 516 F.2d 594, 600 (D.C. Cir. 1975) (en banc) (noting the importance of judicial scrutiny to safeguard against illegal domestic surveillance of persons not associated with foreign countries).
144. Legal Authorities, supra note 64, at 1409-14.
145. See Katz v. United States, 389 U.S. 347, 351 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.");
146. Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 MISS. L.J. 213, 236 n.106 (2002) (listing cases holding that video surveillance by public cameras is not a search because there is no reasonable expectation of privacy).
147. See California v. Greenwood, 486 U.S. 35, 40-41 (1988) (finding no expectation of privacy in trash in garbage bags left on the street);
148. United States v. Dionisio, 410 U.S. 1, 15 (1973) (collecting fingerprints not found to be a search);
149. Abel v. United States, 362 U.S. 217, 241 (1960)
150. (holding that items left in hotel room wastepaper basket were abandoned goods and government collection did not violate the Fourth Amendment). The precise question of how to deal with "abandoned DNA" is still open to debate. Compare Edward J. Im-winkelried & D.H. Kaye, DNA Typing: Emerging or Neglected Issues, 76 WASH. L. REV. 413, 440 (2001) ("[T]he better course is to treat human cells left in public places like fingerprints ⋯."),
151. with Elizabeth E. Joh, Reclaiming "Abandoned" DNA: The Fourth Amendment and Genetic Privacy, 100 NW. U. L. REV. 857, 882-83 (2006) (conceding that there is probably no current Fourth Amendment protection but arguing for legislation regulating covert collection of DNA).
152. See SOLOVE, supra note 71, at 201;
153. Slobogin, supra note 67, at 330-31.
154. As Marty Lederman points out, the post-Watergate oversight system was designed to make Congress as well as the courts "effective check[s] against unfettered executive power." Marty Lederman, Is There Any Way to Fix Legislative Oversight of Intelligence Operations?, BALKINIZATION, Mar. 31, 2008, http://balkin.blogspot.com/2008/03/is-there-any-way-to-fix- legislative html. However, as our current system has developed, Congress has found few ways of detecting and responding to executive misbehavior. The administration offers information only to a very small and select number of legislators.
155. See CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE SUBVERSION OF AMERICAN DEMOCRACY 242 (2007). Its messengers are professional intelligence and uniformed military officers with whom legislators have already developed trusted relationships that they do not wish to undermine. Briefings are highly classified and often occur after questionable conduct has already begun, so that legislators are put in the difficult position of demanding a halt to existing programs that the administration claims are crucial for national security.
156. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE BUSH ADMINISTRATION 206 (2007). The administration assures legislators that any legal questions have already been thoroughly vetted by administration lawyers (for example, in the Office of Legal Counsel) without explaining the basis of the legal analysis in detail, offering competing arguments on the other side, or revealing the existence of dissenting views within the Executive branch. In addition, the administration tells legislators that they may not disclose what they learn about these programs to anyone, including their own staffs-much less any outside experts who might actually help them assess the legality and wisdom of the administration's conduct. That is because any discussions of the legality of administration practices would disclose classified information that might be useful to the enemy or otherwise compromise national security. As a result, legislators generally don't know what the problems are, and even if they suspect that they exist, there is very little they can do about them.
157. See Marty Lederman, The Government Institution Most in Need of Comprehensive Reform, BALKINIZATION, Dec. 9, 2007 http://balkin.blogspot.com/2007/12/government-institution-most-in-need-of.html.
158. See Heidi Kitrosser, Congressional Oversight of National Security Activities: Improving Information Funnels, 29 CARDOZO L. REV. 1049, 1060 (2008) (noting that recent controversies in the Bush administration show that "administrations do not necessarily comply with statutory directives to share information, and individual congresspersons may acquiesce in, even facilitate, such non-compliance."). For recent reform proposals, see nat'l comm'n on terrorist attacks upon the U.S., the 9/11 commission report 419-23 (2004) (arguing for reform of congressional oversight);
159. Anne Joseph O'Connell, The Architecture of Smart Intelligence: Structuring and Overseeing Agencies in the Post-9/11 World, 94 CAL. L. REV. 1655, 1730-35 (2006) (arguing for increased legislative oversight);
160. Jack Goldsmith, The Laws in Wartime, SLATE, Apr. 2, 2008, http://www.slate.com/id/2187870/pagenum/2/ (presenting a list of proposals for continuing aggressive counterterrorism policies while increasing legislative oversight).
161. See Orin S. Kerr, Updating the Foreign Intelligence Surveillance Act, 75 U. CHI. L. REV. 225, 234 (2008) (noting that "today's surveillance tends to be divorced from the identity and location of the parties to the communication" due to changes in communications technology).
162. U.S. CONST, amend. V.
163. See DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., A REVIEW OF THE FBI's USE OF NATIONAL SECURITY LETTERS: ASSESSMENT OF CORRECTIVE ACTIONS AND EXAMINATION OF NSL USAGE IN 2006 158 (2008), available at http://www.usdoj.gov/oig/ speciays0803b/final.pdf (finding expansion of use of national security letters against U.S. persons in a three-year period and detailing abuses of the power to obtain records without a warrant);
164. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., A REVIEW OF THE FBI's USE OF SECTION 215 ORDERS FOR BUSINESS RECORDS IN 2006 85 (2008), available at http://www.usdoj.gov/oig/special/s0803a/ final.pdf (discussing instances in which the FBI received additional information that it was not authorized to receive by FISA court order);
165. DEP'T OF JUSTICE, OFFICE OF THE INSPECTOR GEN., A REVIEW OF THE FBI's USE OF NATIONAL SECURITY LETTERS 31-35 (2007), available at http://www.usdoj.gov/oig/special/s0703b/final.pdf (describing underreporting of number of NSL requests issued and number of legal violations);
166. Electronic Privacy Information Center, National Security Letters (2008), http://epic.org/privacy/nsl/default.html;
167. Barton Gellman, The FBI's Secret Scrutiny: In Hunt for Terrorists, Bureau Examines Records of Ordinary Americans, WASH. POST, Nov. 6, 2005, at Al (describing "an exponentially growing practice of domestic surveillance under the USA Patriot Act");
168. R. Jeffrey Smith, FBI Violations May Number 3,000, Official Says, WASH. POST, Mar. 21, 2007, at A7 (noting as many as 600 "cases of serious misconduct" involving national security letters between 2003 and 2006).
169. See, e.g., Kenneth a. Bamberger & Deirdre K. Mulligan, Privacy Decisionmaking in Administrative Agencies, 75 U. CHI. L. REV. 75, 96 (2008) (noting importance of independent "embedded privacy experts" in Department of Homeland Security "specifically charged with advancing privacy among competing agency interests, located in a central position within the agency decisionmaking structure, drawing on internal relationships and external sources of power, and able to operate with relative independence");
170. cf. Neal Kumar Katyal, Internal Separation of Powers: Checking Today's Most Dangerous Branch from Within, 115 YALE L.J. 2314, 2314-19 (2006) (arguing for mechanisms to create checks and balances within the executive branch in the foreign affairs area);
171. Neal Kumar Katyal, Toward Internal Separation of Powers, 116 YALE L.J. 106 (Pocket Part 2006) (same).
172. See GOLDSMITH, supra note 79, at 123-26, 202-10;
173. SAVAGE, supra note 79, at 132-34;
174. Dawn E. Johnsen, What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. REV. 395, 400-01 (2008) (discussing the Bush administration's decision not to comply with some federal statutes based on a theory of broad executive authority);
175. Marty Lederman, The Theory of a Preclusive Commander-in-Chief Power is Alive and Well, BALKINIZATION, Jan. 30, 2008, http://balkin. blogspot.com/2008/01/theory-of-preclusive-commander-in-chief.html.
176. See, e.g., DEROSA, supra note 65, at 19 (discussing audit technology as a method of protecting privacy and preventing abuse);
177. TECHNOLOGY & PRIVACY ADVISORY COMM., supra note 65, at 50-52 (recommending audit systems for data mining programs);
178. Kozlovski, supra note 48, at 126-28 (arguing for technological systems of accountable policing, including logging of information collected, who has access to it and what searches have been performed);
179. Rubinstein et al., supra note 56, at 269 ("[A]n audit system is needed to provide a complete and tamper-proof record of the searches that have been conducted and the identity of the analysts involved.").