constructing a theoretical model for the evolution of law relating to telecommunication privacy...

Constructing a Theoretical Model Constructing a Theoretical Model for the Evolution of Law Relating for the Evolution of Law Relating to Telecommunication Privacy to Telecommunication Privacy Vis-à-Vis Law Enforcement Vis-à-Vis Law Enforcement Surveillance In AmericaSurveillance In America

donna Bair-Mundy

A dissertation proposal

Structure of the presentationStructure of the presentation

Interception timeline Interception timeline ►►Problem statementProblem statement

Research proposal—MethodologyResearch proposal—Methodology

Theoretical foundationTheoretical foundation

Research interestResearch interest

Impetus for study—Patriot ActImpetus for study—Patriot Act

Three main areas of interestThree main areas of interest

Nationalsecurity

Informationaccess

Communic.privacy

Access by private citizens to

information produced by and about federal

Telecommunication privacy for

individuals vis-à-vis federal government

Physical security

Lawformulation

Law as policyLaw as policy

Development of law as a reflection of the process by which our society determines the boundary between public and private

Constructing a theoretical model for this process

A major impetus…A major impetus…

USA PATRIOT ActH.R. 3162

Public Law No. 107-56Signed Oct. 26, 2001 by Pres. George W. Bush

H.R. 297510/12/2001

S. 151010/11/2001

H.R. 3004Financial Anti-Terrorism Act

Viet DinhAsst. Attorney General

The USA PATRIOT ActThe USA PATRIOT Act

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism

H.R. 3162

The Acronym

To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

H.R. 3162

The Purpose

SEC. 218. FOREIGN INTELLIGENCE INFORMATION.

Sections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

The Language

The U.S. CodeThe U.S. CodeSections 104(a)(7)(B) and section 303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign Intelligence Surveillance Act of 1978 are each amended by striking `the purpose' and inserting `a significant purpose'.

TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1804. Applications for court orders

(7) a certification … (B) that the purpose of the surveillance is to obtain foreign intelligence information;

(7) a certification … (B) that a significant purpose of the surveillance is to obtain foreign intelligence information;

Federal Wiretapping ActFederal Wiretapping Act

1968The Omnibus Crime Control

and Safe Streets Act of 1968 (“Federal Wiretapping Act”)

U.S. Code18 USC Section 2510 et seq.

Federal Rules of Criminal ProcedureRule 41 Search and Seizure

1978Foreign Intelligence

Surveillance Act

U.S. Code50 USC Sections 1801-1863

Investigative powers in US Investigative powers in US CodeCode

Federal Wiretapping

Foreign Intelligence

Surveillance Act

Section 215—Amending FISA 501(d)

No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.

The Complaints—Freedom of Speech

Freedom of association

The Complaints—Other Civil Liberties

Right to due process

Freedom to read

Justice Louis BrandeisJustice Louis Brandeis

“Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

Olmstead v. United States (dissent)

Identifying the Problem: the Identifying the Problem: the Communication interception timelineCommunication interception timeline

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld

Wiretapping evidence disallowed

1928Olmstead

1952On Lee

1961Silverman

Communication interception Communication interception timelinetimeline

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld

1928Olmstead

1934Radio Comm.

1952On Lee

1961Silverman

Federal Communications Act

Section 605

No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person.

NardoneNardone

“…the plain words of § 605 forbid anyone, unless authorized by the sender, to intercept a telephone message, and direct in equally clear language that “no person” shall divulge or publish the message or its substance to “any person.” To recite the contents of the message in testimony before a court is to divulge the message. The conclusion that the act forbids such testimony seems to us unshaken by the government’s arguments.” Justice Roberts

Communication interception Communication interception timelinetimeline

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld

1928Olmstead

1934Radio Comm.

1952On Lee

1961Silverman

Problem statement:Problem statement:

Looking at the continuing saga of legislation and case laws dealing with telecommunication privacy, from Olmstead through Katz, from the Wiretapping Act and FISA to the Patriot Act, how can we understand the process by which society, through its laws, defines the boundary between inviolate personal space and legitimate law enforcement surveillance activities?

Relevant situations for different research strategies

StrategyForm of research question

Experiment How, why yes

Requires control over behavioral

events?

Yin, Robert K. 1994. Case study research: design and methods. Thousand Oaks: Sage Publications.

Focuses on contem-porary

events?

SurveyWho, what, where, how

manyyes yes

History How, why no no

Case study How, why no yes

Two parts of the dissertation

Developa

Case study: USA

Patriot Act

Sources – Model development

CongressionalRecord

U.S.Supreme

Courtdecisions

Legislation

Writings onConstitut.

Lawreviewarticles

Corres-pondence

Sources – Patriot Act

EditorialsLaw

reviewarticles

CongressionalRecord

InterviewsOpinion

pollsOrganizat.Web sites

Surveillance

Privacy

H.L.A. Hart – Penumbral case

LegalLegal

Laurence Tribe – Constitutional models

William Banks and M.E. Bowman – privacy v. national security

Hart's penumbral caseHart's penumbral case

Law: No vehicles may be driven in the park.

ParkPark

Is an airplane a vehicle?

Hart, H.L.A. 1977. “Positivism and the separation of law and morals.” In The philosophy of law, edited by R.M. Dworkin, 17-37. London: Oxford University Press.

Is an airplane a vehicle?Is an airplane a vehicle?

Methods of determinationMethods of determinationDetermine everyday meaning of "vehicle"Determine everyday meaning of "vehicle"

Meaning of "vehicle" in consensus of Meaning of "vehicle" in consensus of casescases

Take a standard case and arbitrarily select Take a standard case and arbitrarily select certain featurescertain features

(1) normally driven on land(1) normally driven on land

(2) capable of carrying a person (2) capable of carrying a person

(3) capable of being self-propelled(3) capable of being self-propelled

ParkPark

Vehicle:Vehicle:(1) normally driven on land(1) normally driven on land(2) capable of carrying a person(2) capable of carrying a person(3) capable of being self-propelled(3) capable of being self-propelled

Error of "formalism" or "literalism"

What are the social purposes of the law?

XParkPark

Onset of wiretapping

1880sFirst reports

of wiretaps in press

1870sTelephoneinvented

1860sWiretapping

duringCivil War

1830sTelegraphinvented

Packet sniffers

1960sPacket

switching

Olmstead v. United States (1928)

AMENDMENT XVIII Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Convicted of a conspiracy to violate the National Prohibition Act

Bootleggers >$176,000 per month

Evidence against them was obtained by wiretapping

Olmstead v. United States

Is warrantless wiretapping an illegal search and seizure and thus banned under the Fourth Amendment?

Question before the Court:

Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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. Here those who intercepted the projected voices were not in the house of either party to the conversation.

We think, therefore, that the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment. Mr. Chief Justice Taft

The well known historical purpose of the Fourth Amendment, directed against general warrants and writs of assistance, was to prevent the use of governmental force to search a man’s house, his papers and effects; and to prevent their seizure against his will. …

The Amendment itself shows that the search is to be of material things….

Mr. Chief Justice Taft

Purpose of Fourth Amendment (Justice Taft)

The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. … They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

Purpose of Fourth Amendment (Justice Brandeis in dissent)

They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Justice Brandeis

Purpose of Fourth Amendment (Justice Brandeis in dissent)

Banks and Bowman theoretical Banks and Bowman theoretical modelmodel

Nationalsecurity

Privacy

Crisis

Rights of the individual

Survival of the group

Associate General Counsel for FBI

Banks, William C., and M.E. Bowman. 2000. Executive authority for national security surveillance. American University law review 50(1).

Oft-cited cases involving technology Oft-cited cases involving technology used to intercept communicationused to intercept communication

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld

1928Olmstead

1952On Lee

1961Silverman

WWII?“Red”scare

Laurence TribeLaurence Tribe

Model ISeparated &

Divided Powers

Model VPreferred Rights

Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.

Models: the major alternatives for constitutional argument and decision

Model IIImplied

Limitations on Government

Model IModel ISeparated & Divided PowersSeparated & Divided Powers

Legislative Executive Judicial

Federal

Primary protection for individual rights provided by the states.

Model IIImplied Limitations on Gov’t

Emphasis on preserving the “natural order” of society.

Major role of the court was to restore natural order upset by state legislation.

Model II (Decline)

Concern for the underprivileged

No natural order to be restored

Need for positive governmental intervention to alleviate suffering

Exclude governmental powers from certain spheres

Identification of “preferred freedoms”

Emphasis on rights of:

•Communication and expression

•Political participation

•Religious autonomy

•Privacy and personhood

Oft-cited cases involving technology Oft-cited cases involving technology used to intercept communicationused to intercept communication

1967Katz

1942Goldstein

1942Goldman

1937/1938Nardone

Conviction upheld

1928Olmstead

1952On Lee

1961Silverman

Model II

Model V

Rule (1973)

SurveillanceSurveillance

Foucault (1979)

Giddens (1987)

Dandeker (1990)

Lyon (1994)

Role of surveillanceRole of surveillance

• Provision of services• Allows participation• Protection against threat• Means of social control

• Discover and rout out deviance• Threat of surveillance used to

promote compliance with the law

Privacy theories

Alan F. Westin

Irwin Altman

Sandra Petronio

Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

Westin's privacy theory: 4 functions of privacy

Personal autonomy

Emotionalrelease

Self-evaluationLimited & protected

communication

Desire to avoid being

manipulated or dominated

wholly by others

Release from tensionsof life in society

requires release from pressure of playing

social roles

Need to integrate experiences into

meaningful pattern; essential for creativity

Share confidences and intimacies only with those

one trusts

Altman's privacy dialectic

Desired level of contact

with others at a point

in time

Achieved or actual contact with others at a point in time

Too little contact—social isolation

Too much contact—crowding

Satisfa

desired &

achieved priv

HighLow

Communication Privacy Management Theory

Rule Management

Processes

Petronio, Sandra. 2002. Boundaries of privacy: dialectics of disclosure. Albany, New York: State University of New York Press.

Sandra PetronioPrivacy Rule Foundations

Boundary Coordination Operations

Boundary Turbulence

Communication Privacy Management Theory

Cultural criteria

Gendered Criteria

Motivational Criteria

Contextual Criteria

Risk-Benefit Ratio Criteria

Petronio, Sandra. 2002. Boundaries of privacy: dialectics of disclosure. Albany, New York: State University of New York Press.

Sandra Petronio

Privacy Rule Development

Boundary coordinationClose friends

Co-owned information formed by disclosures

Boundary turbulenceAddition of Person C

Change in situation may require adjustment of boundaries

Boundary turbulence

Introduction of new interception technology requires re-definition of boundary between

private and accessible information

New telecommunication interception technology

Boundary turbulence

High perceived threat level thrusts society into a period of boundary turbulence

High perceived threat level

Govt.Threat

Modification of Communication Privacy Management Theory

Telecommunication

privacy laws

Natural rights philosophy

Need for social control

Legalprecedent

Changes in technology

Perceived threat level

Questions ?

Mahalo

Additional terms of interestAdditional terms of interest

discourse (lower case “d”)Language-in-use or stretches of languages (like conversations or stories)

Discourse (upper case “D”)Language and non-language elements (symbols, tools, objects) used to enact and recognize different identities and activities. Societal or community-level. Represented and enacted by individuals in a variety of settings over time. E.g. physics as a scientific Discourse.

Congressional debate through Congressional debate through the eyes of a religion majorthe eyes of a religion major

Ritual that includes stylized discourse (lower case “d”) that often makes reference to Discourses (upper case “D”)

HR 3162 House Discussion (Oct. 23, 2001)

Some of us, who have a different history in America, with delegation of authority to the Government and the abuse of that authority, proceed a lot differently than others when we talk about giving authority to the Government that can be abused. And I think that is why we are having so much trouble in this debate. We cannot just come in the middle of a terrorism episode and forget all of the history that has occurred in our country.

HR 3162 House Discussion (Oct. 23, 2001)

Some groups in our country have had their rights violated, trampled on by the law enforcement authorities in this country; and so we do not have the luxury of being able to just sit back and give more authority than is warranted, the authority possibly to abuse due process through law enforcement, even in the context of what we are going through now. This is a very difficult time. I acknowledge that it is. But I think we are giving the Government and law enforcement too much authority in this bill.

Reference to Civil Rights Discourse

Societal good

Privacy isn't just for the good of the individual. Necessary component of a functioning society. Need privacy to form and maintain intimate relationships. These relationships in turn provide the ties that bind society together.

Also liberal notion that in populist government need creativity, fostered by privacy. See John Stuart Mill.

Periods of boundary turbulence

Introduction of newinterception technology

Periods of highperceived threat

R.M. DworkinR.M. DworkinRule

Applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the discussion.

PrincipleStates a reason that argues in one direction, but does not necessitate a particular decision.

Dworkin, R.M. (ed.). 1977. The philosophy of law. London: Oxford University Press.

R.M. Dworkin’s definition of a R.M. Dworkin’s definition of a principleprinciple

“I call a ‘principle’ a standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality.”

Dworkin, R.M. (ed.). 1977. The philosophy of law. London: Oxford University Press.

R.M. Dworkin’s theory of R.M. Dworkin’s theory of fundamental principlesfundamental principles

Man murdered his grandfather

Murderer tried to collect inheritance

Judge ruled that murderer could not receive his inheritance despite being named in the will—ruling based on fundamental principle of law that person shouldn’t benefit from crime

Dworkin, R.M. (ed.). 1977. The philosophy of law. London: Oxford University Press. Case: Riggs v. Palmer 115 N.Y. 506 (1889)

Question of interestQuestion of interest

Was there any indication that a fundamental principle was at stake

in the majority decision in Olmstead?

The evidence in the records discloses a conspiracy of amazing magnitude… . It involved the employment of not less than fifty persons, of two seagoing vessels for the transportation of liquor to British Columbia, of smaller vessels for coastwise transportation to the State of Washington. … In a bad month sales amounted to $176,000; the aggregate for a year must have exceeded two millions of dollars.

Mr. Chief Justice Taft

Individual privacy versus individual secrecy

PrivacyAllowed and in somecases required for

socially-sanctioned acts.Stress reducing.

SecrecyOften involves

socially proscribed acts.Stress inducing.

Margulis, Stephen T. 1977. Conceptions of privacy: current status and next steps. Journal of social issues 33(3):5-21, p. 10. Margulis, Stephen T. 2003. Privacy as a social issue and behavioral concept. Journal of social issues 59(2):243-261.

Model ISeparated & Divided Powers

All lawful power derives from the people and must be held in check to preserve their freedom.

Centralized accumulation of power in any person or single group of persons results in tyranny

Model IModel ISeparated & Divided PowersSeparated & Divided Powers

Legislative Executive Judicial

Federal

Horizontal and vertical separation of powers.

Model IIImplied Limitations on Government

Governmental regulations must promote the general welfare, not promote private interests

Question of interest

Can we utilize Communications Privacy Management Theory in general and the concept of "boundary turbulence" in particular to model the development of laws regulating the use of telecommunication interception technology?

Terms of interestTerms of interest

Case law—Collection of reported cases that form the body of law within a given jurisdiction

Agency-made law—administrative rules and regulations

Constitution—fundamental law of the nation

Statutory law (also termed legislative law)

Informational privacy - Westin's definition - part 1

Privacy is the claim of individuals, groups, or institutions to determine for themselveswhen, how, and to what extentinformation about them is communicated to others.

Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.

Viewed in terms of the relation ofthe individual to social participation, privacy is the voluntary and temporarywithdrawal of a person from the general society through physical or psychological means, either in a state of solitude or, when amonglarger groups, in a condition of anonymity or reserve.

The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire.

Thus each individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others, in light of the environmental conditions and social norms set by the society in which he lives.

The individual does so in the face of pressures from the curiosity of othersand from the processes of surveillance that every society sets in order to enforce its social norms.

Types of privacy in lawTypes of privacy in law

Informationalprivacy

Decisionalprivacy

Control of access to information about a person or group of persons

Freedom to make personal decisions without interference from government

Privacy Act of 1974 Roe v. Wade 1973

Gormley, Ken. 1992. One hundred years of privacy. Wisconsin law review Sept/Oct 1992:1335-1441.

inspector’s lodge

walkway

Jeremy Bentham’s Panopticon

constructing a theoretical model for the evolution of law relating to telecommunication privacy...

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studypatriot act slide

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usa patriot act section

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