Anglo-American Privacy and Surveillance

By Donohue, Laura K. | Journal of Criminal Law and Criminology, Spring 2006 | Go to article overview

Anglo-American Privacy and Surveillance


Donohue, Laura K., Journal of Criminal Law and Criminology


 
TABLE OF CONTENTS 
 
INTRODUCTION 
 
I. SURVEILLANCE AND THE LAW 1N THE UNITED STATES 
       A. REASONABLE EXPECTATION OF PRIVACY 
       B. NATIONAL SECURITY AND SURVEILLANCE 
           1. The Red Scare 
           2. Title III 
           3. Executive Excess 
               a. NSA: Operation SHAMROCK and MINARET 
               b. FBI: COINTELPRO and the Security Index/ADEX. 
               c. CIA: Operation CHAOS 
               d. DOD: Operation CONUS 
           4. The Church Committee 
           5. The Foreign Intelligence Surveillance Act 
       C. THE INFORMATION AGE 
           1. 1994 Communications Assistance for Law Enforcement Act 
           2. 2001 USA PATRIOT Act 
               a. FISA Alterations 
               b. Delayed Notice Search Warrants 
               c. National Security Letters 
       D. WEAKENING OF THE ATTORNEY GENERAL GUIDELINES. 
       E. SURVEILLANCE OPERATIONS 
           1. Counterintelligence Field Activity 
           2. Echelon 
           3. Carnivore/DCS 1000 
           4. Magic Lantern 
           5. Terrorism Information and Prevention System (TIPS) 
           6. Watch Lists 
       F. DATA MINING 
           1. Advances in Technology and the Commodification of 
           Information 
           2. Data Mining Operations 
II. SURVEILLANCE AND THE LAW IN THE UNITED KINGDOM 
       A. THE EVOLUTION OF INFORMATION-GATHERING 
           AUTHORITY 
           1. Property Interference 
           2. Interception of Communications 
               a. Malone v. United Kingdom and its aftermath 
               b. Halford v. United Kingdom and the Regulation of 
                   Investigatory Powers Act 2000 
               c. Effectiveness of Safeguards 
           3. Covert Surveillance: Intrusive, Directed, Covert Human 
           Intelligence Sources 
               a. Khan v. United Kingdom 
               b. 2000 Regulation of Investigatory Powers Act 
           4. Encrypted Data 
       B. POST-9/11: THE 2001 ANTI-TERRORISM, CRIME AND 
           SECURITY ACT 
       C. ANONYMITY AND SURVEILLANCE IN PUBLIC SPACE: 
           CCTV 
           1. Data Protection Act 1998 
           2. European Courts 
           3. CCTV in the United States 
III. POLICY CONSIDERATIONS 
       A. RISKS 
           1. Substantive 
           2. Political 
           3. Legal 
           4. Social 
           5. Economic 
       B. OPTIONS 
CONCLUDING REMARKS 

INTRODUCTION

In October 2001, President George W. Bush authorized the National Security Agency ("NSA") "to intercept the international communications of people with known links to al Qaida and related terrorist organizations." (1) Four years and two months later, news of the program became public. Attorney General Alberto Gonzales defended the Commander-in-Chief's power to ignore warrants otherwise required under the Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets Act. (2) Congress itself had authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks. (3) For Gonzales, this meant that the President was acting "at the zenith of his powers" under the tripartite framework set forth by Justice Jackson in Youngstown v. Sawyer. (4)

This was not the first time Article II claims backed surveillance programs designed to protect the United States from attack. In the midst of the Cold War, the NSA ran Operations SHAMROCK and MINARET. The Federal Bureau of Investigation ("FBI") orchestrated COINTELPRO and amassed over 500,000 dossiers on American citizens. The Central Intelligence Agency ("CIA") oversaw Operation CHAOS and built a database that tracked 300,000 people. Routine counterintelligence operations disrupted everything from women's liberation to the civil rights movement. …

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