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
govt.
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
The USA PATRIOT ActThe USA PATRIOT Act
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
The USA PATRIOT ActThe USA PATRIOT Act
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
FISA
1978Foreign Intelligence
Surveillance Act
U.S. Code50 USC Sections 1801-1863
Investigative powers in US Investigative powers in US CodeCode
1968
Federal Wiretapping
Act
1978
Foreign Intelligence
Surveillance Act
The USA PATRIOT ActThe USA PATRIOT 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
The USA PATRIOT ActThe USA PATRIOT Act
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
W
W
W D R
S E
Communication interception Communication interception timelinetimeline
1967Katz
1942Goldstein
1942Goldman
1937/1938Nardone
Conviction upheld
Wiretapping evidence disallowed
1928Olmstead
1934Radio Comm.
Act
1952On Lee
1961Silverman
W
W
D R
S E
W
Federal Communications Act
1934
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
Wiretapping evidence disallowed
1928Olmstead
1934Radio Comm.
Act
1952On Lee
1961Silverman
W
W
D R
S E
W
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?
yes
SurveyWho, what, where, how
manyyes yes
History How, why no no
Case study How, why no yes
Two parts of the dissertation
Developa
model
Case study: USA
Patriot Act
Sources – Model development
CongressionalRecord
U.S.Supreme
Courtdecisions
Legislation
Writings onConstitut.
law
Lawreviewarticles
Corres-pondence
Sources – Patriot Act
EditorialsLaw
reviewarticles
CongressionalRecord
InterviewsOpinion
pollsOrganizat.Web sites
Theoretical foundationTheoretical foundation
Law
Surveillance
Privacy
Theoretical foundationTheoretical foundation
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
Hart's penumbral caseHart's penumbral case
Law: No vehicles may be driven in the park.
ParkPark
X
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"
Hart's penumbral caseHart's penumbral case
Law: No vehicles may be driven in the park.
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.
Olmstead v. United States (1928)
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.
Olmstead v. United States (1928)
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
Olmstead v. United States (1928)
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)
Olmstead v. United States (1928)
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)
Olmstead v. United States (1928)
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
Wiretapping evidence disallowed
1928Olmstead
1952On Lee
1961Silverman
WWII?“Red”scare
W
W
D R
S E
W
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
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
Model IModel ISeparated & Divided PowersSeparated & Divided Powers
Legislative Executive Judicial
Federal
State
Local
Primary protection for individual rights provided by the states.
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
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.
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
Model II (Decline)
Concern for the underprivileged
No natural order to be restored
Need for positive governmental intervention to alleviate suffering
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
Model VPreferred Rights
Exclude governmental powers from certain spheres
Identification of “preferred freedoms”
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
Model VPreferred Rights
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
Wiretapping evidence disallowed
1928Olmstead
1952On Lee
1961Silverman
W
W
D R
S E
W
Model II
Model V
Theoretical foundationTheoretical foundation
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
ctory
matc
h of
desired &
achieved priv
acy
High
HighLow
Low
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
A B
Boundary turbulenceAddition of Person C
Change in situation may require adjustment of boundaries
A B
C
Boundary turbulence
Introduction of new interception technology requires re-definition of boundary between
private and accessible information
A B
New telecommunication interception technology
Govt.
Boundary turbulence
High perceived threat level thrusts society into a period of boundary turbulence
A B
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
Introduction of newinterception technology
Periods of highperceived threat
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?
Olmstead v. United States (1928)
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.
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
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
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
Model IModel ISeparated & Divided PowersSeparated & Divided Powers
Legislative Executive Judicial
Federal
State
Local
Horizontal and vertical separation of powers.
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed. New York: Foundation Press.
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.
Informational privacy - Westin's definition - part 2
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.
Informational privacy - Westin's definition - part 3
The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire.
Informational privacy - Westin's definition - part 4
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.
Informational privacy - Westin's definition - part 5
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.
cells
inspector’s lodge
entry
walkway
Jeremy Bentham’s Panopticon