Electronic Surveillance in an Era of Modern Technology and Evolving Threats to National Security

By Young, Mark D. | Stanford Law & Policy Review, Winter 2011 | Go to article overview
Save to active project

Electronic Surveillance in an Era of Modern Technology and Evolving Threats to National Security

Young, Mark D., Stanford Law & Policy Review

The world isn't run by weapons anymore, or energy, or money. It's run by little ones and zeroes, little bits of data. It's all just electrons. (1)


Linking hundreds of individual computer networks has created a virtual space on which much of the world's commerce and communication now depends. Electronic mail, peer-to-peer data sharing, Voice-over-Internet Protocol (VoIP), and wireless networks are examples of the technology that enables almost unlimited access to information. This access comes with significant risk. Criminals, terrorists, hostile nation-states, and foreign industrial competitors share this ubiquitous access to information. In the industrial age, we protected ourselves with high walls and long-range weapons; in the digital age, the availability and rapid development of cyber weapons requires layers of defenses and improved awareness of adversarial capabilities and intentions.

Since the first Internet transmission on October 29, 1969 we have been deepening our dependence on digital communications. (2) There are almost two billion users of the Internet. (3) The United States economy depends on it; our critical infrastructure is controlled by it; and our national security is empowered by it, yet vulnerable because of it. Despite our digital dependence, our policy framework, our legal authorities, and our judicial precedent remain underdeveloped.

The cyber security legal landscape is a patchwork of federal and state statutes, federal regulation, and executive branch policy that evolved to address technologies that may no longer exist. Federal government "capabilities and responsibilities are misaligned within the U.S. government." (4) There is no shortage of threats to our information infrastructure. The media has reported that computer-controlled electric power grids are "plagued with security holes that could allow intruders to redirect power delivery and steal data...." (5) Other reports claim that the Chinese military is responsible for the highly sophisticated January 2010 attack against Google's corporate network that sought to access the company's source code. (6) According to the Congressional Research Service, "[t]hreats to the U.S. cyber and telecommunications infrastructure are constantly increasing and evolving as are the entities that show interest in using a cyber-based capability to harm the nation's security interests." (7)

This Article will review the history of electronic surveillance authorities, explain how these authorities are relevant to today's cyber security issues, identify the insufficiencies of the three specific laws on this topic, and recommend discrete amendments to these statutes. The text highlights the deficiencies in the authorities governing U.S. government action in cyberspace and argues that specific sections must be amended to enhance cyber security and enable information sharing between the public and private sector. This Article does not address the federal statutes that govern cybercrime. It focuses on cyber security authorities in the national security context, but the legislative changes recommended here will also benefit law enforcement operations.


The use of computer technology to gain intelligence or as a vector to deny, degrade, or disrupt an adversary's capabilities presents new questions for the laws of electronic surveillance, intelligence collection, and war. (8) In the context of the Fourth Amendment, Professor Orin Kerr of George Washington University Law School notes, "Courts have only recently begun to address these questions, and the existing legal scholarship is surprisingly sparse." (9) What is true of the scholarship in the Fourth Amendment criminal context is doubly true in the national security realm. Current scholarship is either "highly abstract or else focuses only on discrete doctrinal questions." (10)

Since computers and networks are by nature electronic devices, electronic surveillance authorities play an important role in state surveillance for both law enforcement and national security investigations.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Electronic Surveillance in an Era of Modern Technology and Evolving Threats to National Security


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?