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How Americans have viewed government surveillance and privacy since Snowden leaks

Five years ago this month, news organizations broke stories about federal government surveillance of phone calls and electronic communications of U.S. and foreign citizens, based on classified documents leaked by then-National Security Agency contractor Edward Snowden. The initial stories and subsequent coverage sparked a global debate about surveillance practices, data privacy and leaks.

Here are some key findings about Americans’ views of government information-gathering and surveillance, drawn from Pew Research Center surveys since the NSA revelations:

Americans were divided about the impact of the leaks immediately following Snowden’s disclosures, but a majority said the government should prosecute the leaker. About half of Americans (49%) said the release of the classified information served the public interest, while 44% said it harmed the public interest, according to a Pew Research Center survey conducted days after the revelations. While adults younger than 30 were more likely than older Americans to say the leaks served the public interest (60%), there was no partisan divide in these views.

At the same time, 54% of the public said the government should pursue a criminal case against the person responsible for the leaks, a view more commonly held among Republicans and Democrats (59% each) than independents (48%). Snowden was charged with espionage in June 2013. He then fled the U.S. and continues to live in Russia under temporary asylum. 

Americans became somewhat more disapproving of the government surveillance program itself in the ensuing months , even after then-President Barack Obama outlined changes to NSA data collection . The share of Americans who disapproved of the government’s collection of telephone and internet data as part of anti-terrorism efforts increased from 47% in the days after the initial disclosure to 53% the following January.

Other research by the Center also showed that a majority of adults (56%) did not think courts were providing adequate limits on the phone and internet data being collected. Moreover, 70% believed that the government was using surveillance data for purposes beyond anti-terror efforts. Some 27% said they thought the government listened to the actual contents of their calls or read their emails. (Similar figures emerged in a 2017 survey .)

Disclosures about government surveillance prompted some Americans to change the way they use technology. In a survey by the Center in late 2014 and early 2015, 87% of Americans said they had heard at least something about government surveillance programs. Among those who had heard something, 25% said they had changed the patterns of their technology use “a great deal” or “somewhat” since the Snowden revelations.

On a different question, 34% of those who were aware of the government surveillance programs said they had taken at least one step to hide or shield their information from the government, such as by changing their privacy settings on social media.

Americans broadly found it acceptable for the government to monitor certain people, but not U.S. citizens , according to the 2014-15 survey . About eight-in-ten adults (82%) said it was acceptable for the government to monitor communications of suspected terrorists, and equal majorities said it was acceptable to monitor communications of American leaders and foreign leaders (60% each). Yet 57% of Americans said it was unacceptable for the government to monitor the communications of U.S. citizens.

About half of Americans (52%) expressed worry about surveillance programs in 2014 and 2015, but they had more muted concerns about surveillance of their own data . Roughly four-in-ten said they were somewhat or very concerned about government monitoring of their activity on search engines, email messages and cellphones. Roughly three-in-ten expressed the same amount of concern over monitoring of their activity on social media and mobile apps.

The vast majority of Americans (93%) said that being in control of who can get information about them is important, according to a 2015 report . At the same time, a similarly large majority (90%) said that controlling what information is collected about them is important.

Few Americans, however, said that they had a lot of control over the information that is collected about them in daily life. Just 9% of Americans said they had a lot of control over the information that is collected about them. In an earlier survey, 91% agreed with the statement that consumers have lost control of how personal information is collected and used by companies.

Some 49% said in 2016 that they were not confident in the federal government’s ability to protect their data . About three-in-ten Americans (28%) were not confident at all in the government’s ability to protect their personal records, while 21% were not too confident. Just 12% of Americans were very confident in the government’s ability to protect their data (49% were at least somewhat confident).

Americans had more confidence in other institutions, such as cellphone manufacturers and credit card companies, to protect their data. Around seven-in-ten cellphone owners were very (27%) or somewhat (43%) confident that cellphone manufacturers could keep their personal information safe. Similarly, around two-thirds of online adults were very (20%) or somewhat (46%) confident that email providers would keep their information safe and secure.

Roughly half of Americans (49%) said their personal data were less secure compared with five years prior , according to the 2016 survey . The Snowden revelations were followed in the ensuing months and years with accounts of major data breaches affecting the government and commercial firms. These vulnerabilities appear to have taken a toll. Americans ages 50 and older were particularly likely to express concerns over the safety of their data: 58% of these older Americans said their data were less secure than five years prior.  Younger adults were less concerned about their data being less secure; still, 41% of 18- to 49-year-olds felt their personal information was less secure than five years earlier.

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A.W. Geiger is a former associate digital producer and writer for Pew Research Center .

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Public Surveillance to Keep Us Healthy and Protect Our Privacy

Photo: CATHERINE LAI/AFP via Getty Images

Commentary by Glenn S. Gerstell

Published April 16, 2020

If the Black Death in 1348 and the Spanish Flu in 1918 accelerated existing but nascent societal trends, what developments will the Covid-19 pandemic jump-start? While some developments will be revealed only retrospectively, one is immediately manifest: public health requirements will force us to decide just how much technology-fueled surveillance we really want.

Pending an effective vaccine or cure for the new disease, it is inescapable that we will need at scale and speed at least two tools we do not currently have: (1) contact tracing, to track the interactions of infected individuals so as to reduce the spread of the disease, and (2) testing, to determine who is currently infected as well as who has been infected (and presumably has some immunity). This will require gathering information about individuals on a massive scale, analyzing the enormous amounts of data with the help of artificial intelligence, and reporting the results. 

The anodyne approach is to call these activities public health monitoring, but from the vantagepoint of someone who dealt every day with technology-enabled surveillance issues, it is crucial that we recognize it as surveillance, in order to not shy away from important policy questions. In any case, we would use surveillance to achieve actual public health outcomes—ranging from simply alerting someone that they were in contact with a disease carrier to reallocating ventilators and personal protective equipment to anticipated virus hot spots. It is by no means clear, however, that our society will embrace the full potential that current technology has to offer.

Some Asian countries, with different cultures and government models, have been the most willing to utilize surveillance tools in aid of controlling the epidemic, but even Europe, with its strong privacy laws, has turned to technology to track individuals. Singapore does contact tracing through a government-sponsored smartphone app called TraceTogether; South Korea and Taiwan have aggressively monitored individual body temperatures in public spaces; parts of Italy are using phone geolocation data to track individual movements; and Germany and the United Kingdom are actively discussing the use of individual “immunity certificates” to determine who can go back to work. But the leader in relying on technology to make public health decisions in the pandemic is, not surprisingly, China, which (through an Alibaba affiliate) is assigning red, yellow, or green codes to its citizens, barring or entitling them to use public transportation or resume work, depending on whether they test positive or negative for Covid-19. 

Meanwhile, here in the United States, we are struggling with shortages of everything from testing kits to medical gear. But even belatedly, if we are to break free from current national stay-at-home rules, virtually every public health expert counsels us to undertake widespread monitoring and tracking coupled with effective utilization of the resulting data to curtail disease spread and to assist hospitals and their professionals. It remains to be seen whether the necessary surveillance will be in the form of cellphone Bluetooth contact tracking apps of the type recently proposed by Google and Apple; collection of resting heart rates from smartwatches and fitness bands (revealing incipient outbreaks of disease); detailed amassing of passengers’ air travel data; satellite-based or cellphone-generated tracking of individual and automobile movements to reveal shopping, commuting, or other patterns; or ubiquitous public testing with results centrally aggregated and analyzed. Technology is currently able to do all this, and more.

The goal here is not to prescribe or predict which types of monitoring and data collection would be best but to outline the challenges that will inevitably confront us and to offer possible solutions. The privacy and efficiency challenges include ensuring there is solid evidence that any surveillance and data analysis are effective, fair, and non-discriminatory, that there is no “mission creep” such that data ends up being used for other purposes, and that it complies with law. Using our decades-old and relatively refined set of principles governing surveillance for national security purposes, here are six interrelated considerations we must keep in mind for a new public health scheme: 

• The most obvious one of course is determining the scope of collection , which is not so much a function of technology as it is of ascertaining precisely which data will be most effective and available. Ideally, the collection could be narrowly tailored to only that data that will generate the operational outcome needed, for example, telling us who sat within three rows of an infected individual on an airplane. Presumably, to fulfil public health goals, there would be multiple types of collection of data, some of which would be used on a stand-alone basis and some of which would be combined for more powerful individualized analysis. Determining the extent to which anonymized mass data can be cross-analyzed and enriched to reveal individual identities, say, to warn a particular person that they were exposed to a virus carrier, will of course be a fundamental issue to be resolved.
• Who collects, analyzes, and maintains the data is an equally important issue and one which will in part turn on the type of collection. A threshold question is whether the government or private sector is doing the collecting, and the answer, explored further below, is likely to be both. We might well want Google and Apple to help us with cellphone data, and we might well want government to monitor individual body temperatures at airports. Collection is the easier part to decide since in most cases deciding what we want to surveil will tell us who has the ability to obtain that data. The more difficult question is who conducts the analysis and who keeps the data, and almost surely the answer should not be the collector.
• Determining who is permitted to have access to the data and what types of searches of the database may be allowed will also be critical, to prevent misuse. In the national security context, for example, there are detailed rules allowing some telephone data to be searched by special government analysts for only bona fide security purposes, not for checking up on the calls made by the analyst’s spouse.
• Getting rid of the data after it has served its original purpose, or perhaps moving it to highly restricted space for archival purposes if truly needed, will be important. Again, to use a national security example, almost all terrorist-related data the NSA collects is required by law to be deleted after a set period of time, in part to minimize the temptation to use it for other purposes.
• A combination of public reporting and independent oversight will be crucial to inspiring public confidence and trust in whatever surveillance mechanisms are adopted for public health purposes. Transparency will enable the public to understand exactly what is being collected and for what purpose and thus to accept the associated invasion of privacy (however it may be perceived). Oversight similarly instills confidence that the rules are being followed and, in this case, that overzealous efforts will not be made in the name of public health to uncover other information that we are not consciously consenting to revealing about our personal and business lives.
• Illustrating the interrelationship of all these considerations, the answers to the foregoing factors will enable us to determine what legal restrictions need to be met. Even though the private sector in the aggregate currently collects and analyzes far more data about individuals and businesses than the federal government does, there are relatively few legal restrictions on the private sector in that regard, as the United States does not have baseline national privacy laws—unlike Europe and Japan. Aside from a scattering of state laws, most of the meaningful privacy restrictions operating on Google, Amazon, Facebook, and the like are contractual (through user consent).

By contrast, for the federal government, electronic surveillance is subject to the Fourth Amendment to the Constitution, which in essence requires that the surveillance not be “unreasonable.” Applying a constitutional amendment adopted in 1792 to today’s technology involves considerable intellectual leaps, as was illustrated by the Supreme Court’s most recent pronouncement in this area, in the Carpenter case of 2018, which said that it was unreasonable for government (in the absence of a search warrant) to acquire more than seven days’ worth of cellphone geolocation data on a particular individual. Left unsaid was what other types or durations of surveillance might be reasonable. Suffice it to say that, at least on an anonymized or mass level, the general collection and analysis of data for public health purposes will not run afoul of the Constitution; and even if individual data were involved, it should be possible to construct a constitutionally permissible scheme. A clearly defined statute authorizing government surveillance with appropriate safeguards, especially when balanced against critical public safety needs, will go a long way to assuring constitutional reasonableness.

The resolution of most of these considerations will hinge on what type of data is being collected, and it is thus not possible to supply one answer to address all possibilities. On the other hand, the question of “who” can be preliminarily addressed before we sort out the other details. That question is equally important and will be the deciding factor in how effective the endeavor will be and how much public confidence it will enjoy.

We will need a solution that is seen as effective and legitimate and thus worthy of public compliance and trust. Only government can furnish the needed sense of authority and legitimacy, and yet the private sector clearly has a vital role to play, both in collecting and in offsetting concerns over too much government involvement. Within government, while our spy agencies such as the NSA and CIA have experience in dealing with electronic surveillance, they manifestly should not have (and do not want to have) anything to do with the completely separate public health mission. At most, they, along with entities such as the National Institute of Standards and Technology, might supply technical expertise in narrow channels to whatever entity is chosen to handle the data, assisting in system design and the role of artificial intelligence, for example. While there will be multiple streams of collection and resultant data, to be effective it should be analyzed in one central entity so that information from one source can inform the others, producing better public health decisions. The Centers for Disease Control and Prevention, despite some initial missteps in the pandemic, is well-versed in dealing with large quantities of public health data and thus will continue to have a leading voice. Some broader entity, however, should knit together the public and private roles and help achieve all the disparate goals. 

One such institution might be the universally respected National Academies of Sciences, Engineering and Medicine, which is already active in Covid-19 research. The congressionally chartered umbrella organization, the National Academy of Sciences (NAS), which traces its history to legislation signed by President Lincoln, is not an operating entity of the federal government. Nonetheless, with some limited statutory modifications, it could be in a position to serve as an oversight board of directors or advisers to whatever entity becomes the central operator of the public health monitoring and analytic regime. There will be a temptation to install current members of Congress directly in a supervisory function. But, as in the case of national security surveillance—which instead is directly overseen by the judiciary and various entities in the executive branch—it makes more sense to rely on Congress for general oversight powers.

Another understandable temptation to be resisted as we seek a public health surveillance system is to address public health deficiencies comprehensively. More likely to be successful, however, is specific legislation to deal with the immediate monitoring need. The history of our response to the 9/11 attacks and, more recently, cybersecurity threats, shows us that it is easier to tailor legislation to address specific, current requirements and much more difficult to restructure government, due to turf wars within the executive branch and the dispersal of authority among congressional committees. These are the issues that should be, and undoubtedly will be, grappled with by one or more national commissions, which are better suited to handle these political and policy issues.

We should put politics aside as much as possible, accept an independent entity such as the NAS to play a critical role in overseeing a true public-private partnership, and start to make the smart decisions needed to quickly adopt the type of surveillance needed for our nation’s public health.

Glenn S. Gerstell is a senior adviser (non-resident) with the International Security Program at the Center for Strategic and International Studies in Washington, D.C., and served as the general counsel of the National Security Agency and Central Security Service from 2015 to 2020.

Commentary is produced by the Center for Strategic and International Studies (CSIS), a private, tax-exempt institution focusing on international public policy issues. Its research is nonpartisan and nonproprietary. CSIS does not take specific policy positions. Accordingly, all views, positions, and conclusions expressed in this publication should be understood to be solely those of the author(s).

© 2020 by the Center for Strategic and International Studies. All rights reserved.

Glenn S. Gerstell

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The Ethics of Surveillance

Introduction to surveillance.

Surveillance is, simply put, the observation and/or monitoring of a person. Coming from the French word for "looking upon," the term encompasses not only visual observation but also the scrutiny of all behavior, speech, and actions. Prominent examples of surveillance include surveillance cameras, wiretaps, GPS tracking, and internet surveillance.

One-way observation is in some ways an expression of control. Just as having a stranger stare at you for an extended period of time can be uncomfortable and hostile, it is no different from being under constant surveillance, except that surveillance is often done surreptitiously and at the behest of some authority.

Todays technological capabilities take surveillance to new levels; no longer are spyglasses and "dropping" from the eaves of a roof necessary to observe individuals - the government can and does utilize methods to observe all the behavior and actions of people without the need for a spy to be physically present. Clearly, these advances in technology have a profound impact with regards to the ethics of placing individual under surveillance&emdash;in our modern society, where so many of our actions are observable, recorded, searchable, and traceable, close surveillance is much more intrusive than it has been in the past.

Surveillance and Physical Searches

Particularly interesting about government surveillance is that in the United States surveillance is not held to the same standards of accountability&emdash;as the Constitution protects American citizens from unreasonable searches and seizures, physical searches of individuals may not be conducted without a warrant issued by a judge. However, after the passage of FISA and subsequent laws, citizens have not been given the same protection with regards to electronic surveillance. As there have been massive changes in technology and lifestyle since the 1970s, electronic surveillance could be considered much more invasive than a physical search, yet as has been made clear in the legal section of this website, it is in fact much easier for government agents to perform surveillance. Why there is such disparity between these standards to us a matter of serious concern.

"If you haven't done anything wrong, you have nothing to fear."

This is a typical argument used by governments and other groups to justify their spying activities. Upon cursory inspection, it seems to make sense&emdash;as most people are law-abiding citizens, most ostensibly will not be targeted for surveillance and it will not impact their lives, while making their lives more comfortable and safer through the elimination of criminals. Thus, the government's use of closed-circuit television cameras in public spaces, warrantless wiretapping, and library record checks have the potential to save lives from criminals and terrorists with only minimal invasion of its citizens' privacy.

First, as a mental exercise, we ask that the reader consider that these arguments could easily be applied to asking all citizens to carry location tracking devices&emdash;it would make tracing criminal acts much easier, and that it could easily be argued that people refusing to carry these devices only do so because they have something to hide. It is a matter of course that most people in our society would object to this solution, not because they wish to commit any wrongdoings, but because it is invasive and prone to abuse. Now consider that, given current technology, the government already has the ability to track a known target's movements to a reasonable degree, and has easy access to information such as one's purchasing habits, online activities, phone conversations, and mail. Though implementing mandatory location tracking devices for the whole population is certainly more invasive than the above, we argue that current practices are analogous, extreme, and equally unacceptable.

Next, this argument fails to take into consideration a number of important issues when collecting personally identifiable data or recordings&emdash;first, that such practices create an archive of information that is vulnerable to abuse by trusted insiders; one example emerged in September of 2007 when Benjamin Robinson, a special agent of the Department of Commerce, was indicted for using a government database called the Treasury Enforcement Communications System (TECS) for tracking the travel patterns of an ex-girlfriend and her family. Records show that he used the system illegally at least 163 times before he was caught (Mark 2007). With the expansion of surveillance, such abuses could become more numerous and more egregious as the amount of personal data collected increases.

In addition, allowing surreptitious surveillance of one form, even limited in scope and for a particular contingency, encourages government to expand such surveillance programs in the future. It is our view that the danger of a "slippery slope" scenario cannot be dismissed as paranoia - as a prominent example, the collection of biometric has expanded immensely in the past several years. Many schools in the UK collect fingerprints of children as young as six without parental consent (Doward 2006), and fingerprinting in American schools has been widespread since the mid-eighties (NYT National Desk 1983). Now, the discussion has shifted towards DNA collection&emdash;British police are now pushing for the DNA collection of children who "exhibit behavior indicating they may become criminals in later life" (Townsend and Asthana 2008), while former New York City mayor Rudy Giuliani has encouraged the collection of DNA data of newborns (Lambert 1998).

When data is collected, whether such data remains used for its stated purpose after its collection has been called into question, even by government officials: the European Data Protection Supervisor has acknowledged that even when two databases of information are created for specific, distinct purposes, in a phenomenon known as 'function creep' they could be combined with one another to form a third with a purpose for which the first two were not built (eGov Monitor Weekly 2006). This non-uniqueness and immutability of information provides great potential for abuse by individuals and institutions.

When is surveillance appropriate?

A. the means.

Harm: does the technique cause unwarranted physical or psychological harm?

Boundary: does the technique cross a personal boundary without permission (whether involving coercion or deception or a body, relational or spatial border)?

Trust: does the technique violate assumptions that are made about how personal information will be treated such as no secret recordings?

Personal relationships: is the tactic applied in a personal or impersonal setting?

Invalidity: does the technique produce invalid results?

B. The Data Collection Context

Awareness: are individuals aware that personal information is being collected, who seeks it and why?

Consent: do individuals consent to the data collection?

Golden rule: would those responsbile for the surveillance (both the decision to apply it and its actual application) agree to be its subjects under the conditions in which they apply it to others?

Minimization: does a principle of minimization apply?

Public decision-making: was the decision to use a tactic arrived at through some public discussion and decision making process?

Human review: is there human review of machine generated results?

Right of inspection: are people aware of the findings and how they were created?

Right to challenge and express a grievance: are there procedures for challenging the results, or for entering alternative data or interpretations into the record?

Redress and sanctions: if the individual has been treated unfairly and procedures violated, are there appropriate means of redress? Are there means for discovering violations and penalties to encourage responsible surveillant behavior?

Adequate data stewardship and protection: can the security of the data be adequately protected?

Equality-inequality regarding availability and application: a) is the means widely available or restricted to only the most wealthy, powerful or technologically sophisticated? b) within a setting is the tactic broadly applied to all people or only to those less powerful or unable to resist c) if there are means of resisting the provision of personal information are these equally available, or restricted to the most privileged?

The symbolic meaning of a method: what does the use of a method communicate more generally?

The creation of unwanted precedents: is it likely to create precedents that will lead to its application in undesirable ways?

Negative effects on surveillors and third parties: are there negative effects on those beyond the subject?

Beneficiary: does application of the tactic serve broad community goals, the goals of the object of surveillance or the personal goals of the data collector?

Proportionality: is there an appropriate balance between the importance of the goal and the cost of the means?

Alternative means: are other less costly means available?

Consequences of inaction: where the means are very costly, what are the consequences of taking no surveillance action?

Protections: are adequate steps taken to minimize costs and risk?

Appropriate vs. inappropriate goals: are the goals of the data collection legitimate?

The goodness of fit between the means and the goal: is there a clear link between the information collected and the goal sought?

Information used for original vs. other unrelated purposes: is the personal information used for the reasons offered for its collection and for which consent may have been given and does the data stay with the original collector, or does it migrate elsewhere?

Failure to share secondary gains from the information: is the personal data collected used for profit without permission from, or benefit to, the person who provided it?

Unfair disadvantage: is the information used in such a way as to cause unwarranted harm or disadvantage to its subject?

In general, we feel that surveillance can be ethical, but that there have to exist reasonable, publicly accessible records and accountability for those approving and performing the surveillance in question.

The Dangers of Surveillance

• Neil M. Richards
• Addressing the Harm of Total Surveillance: A Reply to Professor Neil Richards  by  Danielle Keats Citron , David Gray
• See full issue

From the Fourth Amendment to George Orwell’s Nineteen Eighty-Four , and from the Electronic Communications Privacy Act to films like Minority Report and The Lives of Others , our law and culture are full of warnings about state scrutiny of our lives. These warnings are commonplace, but they are rarely very specific. Other than the vague threat of an Orwellian dystopia, as a society we don’t really know why surveillance is bad and why we should be wary of it. To the extent that the answer has something to do with “privacy,” we lack an understanding of what “privacy” means in this context and why it matters. We’ve been able to live with this state of affairs largely because the threat of constant surveillance has been relegated to the realms of science fiction and failed totalitarian states.

But these warnings are no longer science fiction. The digital technologies that have revolutionized our daily lives have also created minutely detailed records of those lives. In an age of terror, our government has shown a keen willingness to acquire this data and use it for unknown purposes. We know that governments have been buying and borrowing private-sector databases, and we recently learned that the National Security Agency (NSA) has been building a massive data and supercomputing center in Utah, apparently with the goal of intercepting and storing much of the world’s Internet communications for decryption and analysis.

Although we have laws that protect us against government surveillance, secret government programs cannot be challenged until they are discovered. And even when they are, our law of surveillance provides only minimal protections. Courts frequently dismiss challenges to such programs for lack of standing, under the theory that mere surveillance creates no harms. The Supreme Court recently reversed the only major case to hold to the contrary, in Clapper v. Amnesty International USA , finding that the respondents’ claim that their communications were likely being monitored was “too speculative.”

But the important point is that our society lacks an understanding of why (and when) government surveillance is harmful. Existing attempts to identify the dangers of surveillance are often unconvincing, and they generally fail to speak in terms that are likely to influence the law. In this Article, I try to explain the harms of government surveillance. Drawing on law, history, literature, and the work of scholars in the emerging interdisciplinary field of “surveillance studies,” I offer an account of what those harms are and why they matter. I will move beyond the vagueness of current theories of surveillance to articulate a more coherent understanding and a more workable approach.

At the level of theory, I will explain why and when surveillance is particularly dangerous and when it is not. First, surveillance is harmful because it can chill the exercise of our civil liberties. With respect to civil liberties, consider surveillance of people when they are thinking, reading, and communicating with others in order to make up their minds about political and social issues. Such intellectual surveillance is especially dangerous because it can cause people not to experiment with new, controversial, or deviant ideas. To protect our intellectual freedom to think without state over-sight or interference, we need what I have elsewhere called “intellectual privacy.” A second special harm that surveillance poses is its effect on the power dynamic between the watcher and the watched. This disparity creates the risk of a variety of harms, such as discrimination, coercion, and the threat of selective enforcement, where critics of the government can be prosecuted or blackmailed for wrongdoing unrelated to the purpose of the surveillance.

At a practical level, I propose a set of four principles that should guide the future development of surveillance law, allowing for a more appropriate balance between the costs and benefits of government surveillance. First, we must recognize that surveillance transcends the public/private divide . Public and private surveillance are simply related parts of the same problem, rather than wholly discrete. Even if we are ultimately more concerned with government surveillance, any solution must grapple with the complex relationships between government and corporate watchers. Second, we must recognize that secret surveillance is illegitimate and prohibit the creation of any domestic-surveillance programs whose existence is secret. Third, we should recognize that total surveillance is illegitimate and reject the idea that it is acceptable for the government to record all Internet activity without authorization. Government surveillance of the Internet is a power with the potential for massive abuse. Like its precursor of telephone wiretapping, it must be subjected to meaningful judicial process before it is authorized. We should carefully scrutinize any surveillance that threatens our intellectual privacy. Fourth, we must recognize that surveillance is harmful . Surveillance menaces intellectual privacy and increases the risk of blackmail, coercion, and discrimination; accordingly, we must recognize surveillance as a harm in constitutional standing doctrine. Explaining the harms of surveillance in a doctrinally sensitive way is essential if we want to avoid sacrificing our vital civil liberties.

I develop this argument in four steps. In Part I, I show the scope of the problem of modern “surveillance societies,” in which individuals are increasingly monitored by an overlapping and entangled assemblage of government and corporate watchers. I then develop an account of why this kind of watching is problematic. Part II shows how surveillance menaces our intellectual privacy and threatens the development of individual beliefs in ways that are inconsistent with the basic commitments of democratic societies. Part III explores how surveillance distorts the power relationships between the watcher and the watched, enhancing the watcher’s ability to blackmail, coerce, and discriminate against the people under its scrutiny. Part IV explores the four principles that I argue should guide the development of surveillance law, to protect us from the substantial harms of surveillance.

May 20, 2013

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The first amendment, secret government searches and digital civil liberties.

By Neil Richards , [1]   a internationally-recognized expert in privacy law, information law, and freedom of expression. He is the Thomas and Karole Green Professor of Law at Washington University School of Law, where he co-directs the Washington University Institute for Genomic Medicine and the Law.

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Perhaps surprisingly, the most compelling moment in Oliver Stone’s “Snowden” biopic is the sex scene. Halfway through this movie about government surveillance and whistleblowing, the audience is shown a graphic and seemingly gratuitous sexual encounter involving Edward Snowden (played by Joseph Gordon Levitt) and his girlfriend Lindsay Mills (played by Shailene Woodley). In the midst of their passion, Snowden’s eyes rest on Lindsay’s open laptop, the empty eye of its camera gazing towards them. In a flash, he recalls an earlier event in which NSA contractors hacked laptop cameras to secretly spy on surveillance subjects in real time. Edward and Lindsay’s mood was ruined, to say the least, by the prospect of government agents secretly watching their intimate activities.

The scene evokes George Orwell’s famous warning about telescreens, the omnipresent surveillance devices in Big Brother’s Oceania, by which the Thought Police could secretly watch anyone at any time. [2] It also has grounding in reality. The use of millions of hacked webcams as monitoring devices was a program known as “Optic Nerve,” which was part of the Snowden revelations. [3] Another program leaked by Snowden involved the surveillance of the pornography preferences of jihadi radicalizers (including at least one “U.S. person”), with the intention being the exposure of their sexual fantasies to discredit them in the Muslim world. [4] Snowden himself famously appeared on John Oliver’s HBO show “Last Week Tonight,” humorously but effectively reducing unchecked government surveillance to the basic proposition that secret surveillance allowed the government, among other things, to “get your dick pics.” [5]

Sexual surveillance may get our attention, but in our digital networked society, in which many of our documents are stored in the cloud, secret government surveillance powers are vastly broader than the power to be an electronic Peeping Tom. Today, the U.S. government has a wide variety of means of secretly watching and searching the people who live in the United States, whether they are citizens, permanent residents, or visitors.

How did we get to a place where secret government surveillance seems both omnipresent and unavoidable? It may be hard to believe these days, but when the Internet first jumped into the public consciousness in the mid-1990s, it was touted as a realm of anarchy and personal empowerment, a tool of freedom rather than of oppression. [6] At the time, the specter of always-on secret surveillance was unthinkable for a variety of technical, political, and legal reasons. Such surveillance was technologically impossible in a pre-broadband world of modems and computers that were usually not connected to the network and in which the Cloud was a dream of technologists and science fiction writers. It was practically impossible, because of the high costs of in-person surveillance. It was politically impossible, too, with many politicians having first-hand memory of the totalitarian regimes of the Axis Powers. Legally , too, the law was settled that the government needed to get a warrant before it tapped a phone, searched papers, or intercepted an email.

How times have changed. These well-established technical and political roadblocks to widespread secret surveillance vanished rapidly in the early months of the twenty-first century. When Al Qaeda terrorists turned four commercial airlines into missiles and attacked New York and Washington, D.C. in September 2001, a stunned American President without a strong commitment to civil liberties began to authorize unprecedented levels of digital surveillance. From a technological perspective, the attacks occurred just after the mass adoption of the Internet, and just before the social media and smartphone phases of the digital revolution. These advances and adoptions, running on a stream of previously uncollected personal data, made it technically possible for the government to read a person’s emails or documents stored in the cloud, or obtain a minutely-detailed transcript of their location logged from the GPS chip in their phone. At the same time, these new technologies started to blur the lines between public and private, destabilizing settled legal understandings of the boundaries between what was private and what was not. In this environment, law enforcement often took the position that in doing their job of promoting security, it was better to ask for forgiveness than permission in attacking the newly-available digital evidence.

Yet despite the growth of the surveillance-industrial complex, [7] there are hopeful signs. Apple and Microsoft, among other technology companies, have engaged in high-profile litigation with the federal government on behalf of their users’ privacy, including litigation over the security of iPhones and the government’s ability to place gag orders on its searches of Microsoft’s cloud and email services. [8]

The result of these changes is the rise of a phenomenon I shall call the “secret government search.” This is, as the name suggests, a search by law enforcement of information relating to an individual. Secret government searches can be diverse—they can be physical or increasingly digital; they can be executed under a warrant, under no warrant, or under some intermediate authorization; they can be unknown to all, or served on a trusted digital service accompanied by an injunction forbidding notice to the target; and the target may get delayed notice of the search or no notice ever. Different kinds of secret government searches can raise different problems, and these problems may require different solutions. But at bottom, secret government searches share the essential characteristic of being government surveillance of which the target has no notice at the time of the search.

In this essay, I attempt to put the rise of secret government searches into context—historical, technological, and most importantly constitutional. My argument is straightforward—the current state of secret government searches is a dangerous anomaly in our democratic order. It is unprecedented as a technological and historical matter, and it is inconsistent with what I believe is the best reading of our constitutional traditions protecting freedom of thought, freedom of expression, and freedom from unreasonable searches and seizures. If we are to faithfully translate our hard-won civil liberties against the state from the physical realm to the digital, we need to do better to limit the ability of the government to peer into the lives of its citizens in ways that are not only secret but also relatively unconstrained. It is important to recognize, however, that this is not a question of civil liberties “in cyberspace,” as if the digital realm is somehow a separate one. While the fiction of separate physical and virtual worlds may have been a useful one twenty years ago, in today’s networked, mobile era of ubiquitous personal computers, the overwhelming majority of ordinary people use digital platforms and technologies to live their everyday lives. Recognition of this fact must also cause us to recognize that there is not really any such place as “cyberspace.” On the contrary, there is only space, and humans in that space trying to live their lives—sometimes using digital tools, sometimes using pre-digital ones, and frequently using a combination of the two. [9] Yet if we fail to fully extend our hard-won rights in traditional activities to digital, networked activities, those rights will be substantially and perhaps even fatally diminished. If that were to happen, we would all be less safe as a result.

This argument proceeds in four steps. First, I will describe the lay of the land with respect to secret government searches, a phenomenon I term “the secret search epidemic.” I argue that it is impossible to fully understand the constitutional issues these searches raise without an appreciation of the essential technical and other roles played by the technology companies whose businesses enable the creation of this data in the first place. Second, I examine these secret searches as “searches,” and consider them from the perspective of Fourth Amendment law. This focuses our attention on the “search” part of secret government searches. I argue that the best reading of the Fourth Amendment in this context is that secret searches are unreasonable, and that if we permit them, we risk repeating the mistakes of the past with respect to the Fourth Amendment and new technologies. Third, I consider whether secret searches are a threat to First Amendment values, either by virtue of their secrecy or by the fact that in the digital context they are often served on cloud providers and accompanied by injunctions forbidding those companies to ever tell their customers about the government’s accessing their data. I conclude that secret, unconstrained searches of this kind represent a serious threat to our First Amendment values. Finally, I chart a path forward for secret surveillance law, offering four principles that should govern the delicate task of translating our civil liberties into the digital society.

I. The Secret Search Epidemic

Debates over government digital surveillance have raged in the United States since 2001, but particularly since the Snowden revelations of 2013. A central issue in these debates concerns the extent to which government surveillance is either enabled or hindered by the advent of digital technology. One school of thought, championed by law enforcement, is that digital technologies are racing ahead of government abilities to monitor them, and that consequently, law enforcement’s crime detection abilities are “going dark.” In a 2014 address, FBI Director James Comey explained that with the advent of digital technologies:

Unfortunately, the law hasn’t kept pace with technology, and this disconnect has created a significant public safety problem. We call it ‘Going Dark,’ and what it means is this: Those charged with protecting our people aren’t always able to access the evidence we need to prosecute crime and prevent terrorism even with lawful authority. We have the legal authority to intercept and access communications and information pursuant to court order, but we often lack the technical ability to do so. [10]

An alternative perspective is offered by law professor Peter Swire, a member of the Review Group on Intelligence and Communications Technology, commissioned by President Obama to review American surveillance practices in the aftermath of Snowden’s leaks. Swire argued on the contrary that even though technology was making some forms of government surveillance more challenging,

it is more accurate to say that we are in a ‘Golden Age of Surveillance’ than for law enforcement to assert that it is ‘Going Dark.’ . . . [T]here are indeed specific ways that law enforcement and national security agencies lose specific previous capabilities due to changing encryption technology. These specific losses, however, are more than offset by massive gains, including: (1) location information; (2) information about contacts and confederates; and (3) an array of new databases that create digital dossiers about individuals’ lives. [11]

On balance, Swire’s argument seems the more persuasive reading of what has happened to government surveillance power in the Internet era. Despite encryption having made the government’s job difficult in some respects, many of the forms of communication and kinds of data sought by the government simply did not exist in an analog era. By opening vast chunks of human activity up to digital measurement and potentially access, the digital revolution has created at least the potential for scrutiny of human life in ways never before possible. And this potential government scrutiny of our lives could also occur in ways that are unknown to us while it is happening.

Some of the tools for this kind of surveillance already exist, and are being used tens of thousands of times each year to engage in secret searches. The federal government, for example, has substantial powers to engage in secret surveillance of communications and other data held by trusted intermediaries, usually technology companies. Unlike an old-fashioned physical search of a home for letters, demands placed on these trusted intermediaries are much easier to conceal. While it is difficult for the government to search a home for letters, diaries, or other documents without the homeowner noticing, it is much easier for it to secretly access digital communications. In addition, unlike paper communications records, which are physical and hard to copy or remove secretly, electronic records by their nature facilitate the making of unlimited perfect copies with ease.

Beyond their unobtrusive nature, digital searches by the government can offer a second kind of secrecy, which is enforced silence. When the government obtains personal information from technology companies or other organizations with relationships to its search targets, it is often able to place an injunction on the company, ordering them to keep quiet upon penalty of legal action. These powers include the Foreign Intelligence Surveillance Act, [12] the Electronic Communications Privacy Act, [13] and its power under several laws to issue National Security Letters. [14] Although these powers are not known by most people, they are invoked with an astonishing frequency. For example, Facebook reported that in the last six months of 2015 in the United States alone, it received 19,235 requests from law enforcement for data on 30,041 users, and produced data in over 80% of those cases. [15] Other large technology companies report similarly large numbers. Of course, the existence of these transparency reports is a hard-won victory for transparency over silence. But the fact remains that transparency reports are voluntary reports made by a small number of companies, they vary in their scope and specificity, and they report aggregate data rather than specifics.

Beyond these forms of surveillance, many other new avenues of surveillance are available for the government, often without much legal oversight. These technologies can be unobtrusive, secret, or both. For example, social media monitoring technologies are being used to profile “Black Lives Matter” and other political dissenters based upon their public- or semi-public expression. [16] Automatic license plate readers can create detailed maps over time of which cars go down a street and when, and can be used to build highly-detailed databases of the movement of vast numbers of people in cars. [17] Smartphone microphones and cameras can be hacked in order to turn them into individual bugging devices. [18] And new technologies that are just around the corner will create even more data, even more surveillance, and even more potential for incursions into civil liberties or other forms of abuse. For example, as cars become ever more digital and ever less mechanical, microphone-equipped “connected cars” and self-driving cars will offer enormous potential as surveillance tools against their owners. [19] Voice-activated televisions and other home “Internet of Things” appliances will offer similar potential. [20] A little further down the road, mixed- and augmented-reality devices like the Microsoft HoloLens and Magic Leap will enable the projection of virtual information, objects, and content in physical spaces. In order to do that, they will need to create a comprehensive computer model of the entire world. As an otherwise enthusiastic editor from Wired Magazine noted in a cover story on these technologies:

This comprehensive tracking of your behavior inside these worlds could be used to sell you things, to redirect your attention, to compile a history of your interests, to persuade you subliminally, to quantify your actions for self-improvement, to personalize the next scene, and so on. If a smartphone is a surveillance device we voluntarily carry in our pocket, then VR will be a total surveillance state we voluntarily enter. [21]

Inevitably, the government will assert that all of these records are obtainable under its secret search powers as well.

Searches of digital records create additional problems in addition to the ease of searching and copying they provide. Two of these problems are particularly worthy of note. First, an important check on police surveillance in the past has not been the law but non-legal considerations. Indeed, the Supreme Court has recognized that the government’s ability to abuse its surveillance powers have been traditionally limited by non-legal considerations, including “limited police resources and community hostility” to such practices. [22] Secret digital searches substantially eliminate the power of these non-legal checks; it is hard to be hostile to or resist something one knows nothing about, and digital searches can search thousands or even millions of records in bulk in a way that would be impossible for a physical search. In this way, secret digital searches substantially change the power of law enforcement relative to the citizens on whose behalf they work.

Second, in secret search cases, the government frequently argues that information held by “third parties” other than the suspect are unprotected by the Fourth Amendment. This argument rests upon a broad reading of two Supreme Court cases from the 1970s involving bank and telephone records. [23] These cases have been read to suggest that information voluntarily turned over to a “third party” loses a reasonable expectation of privacy and thus can be obtained by the government without a search warrant. In the paper records world of the 1970s, such a doctrine might have made some sense, especially when the contents of telephone calls and paper letters were fully protected by Fourth Amendment doctrine. [24] As a result, a broad reading of the third-party doctrine suggests that anything shared with anyone else loses Fourth Amendment protection. (This is not to suggest that emails are completely unprotected, as the government must generally get a warrant to obtain the contents of emails in flight or stored for less than six months under the federal Electronic Communications Privacy Act. [25] ) Yet in our digital, cloud-connected world, virtually everything electronic is shared with someone else, as we entrust our information with technological intermediaries like Internet Service Providers, phone companies, email services, social networks, and cloud storage companies so that they can perform their services for us. Moreover, from a technological perspective, essentially all of this information—even emails—is technologically indistinct from business records. [26]

Perhaps unsurprisingly, the third-party doctrine has been controversial. It has almost universally been condemned by scholars, [27] and its broad implications have never been fully endorsed by the Supreme Court. Although the federal government maintained in a number of criminal prosecutions that emails held by an Internet Service Provider were subject to the third-party doctrine, a federal appeals court squarely rejected that argument in 2010, holding that emails (like phone calls and paper mail) were protected by the Fourth Amendment and that their owners were entitled to a reasonable expectation of privacy. [28] In recent cases, the Supreme Court has begun to extend the Fourth Amendment to protect against technologically-enabled searches of homes, cars, and mobile phones. [29] In one of these, the location-tracking case of United States v. Jones , Justice Sotomayor expressed grave dismay at the broad reading of the third-party doctrine, explaining that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” [30] Noting that this information included books read, emails sent, and the phone numbers dialed, she doubted whether, in determining expectations of privacy,

that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. [31]

However, until the Supreme Court takes a third-party doctrine case and either clarifies the law or squarely rejects the doctrine for personal data entrusted to digital intermediaries, there remains an enormous potential for mischief and the erosion of digital civil liberties. Lacking guidance from the Supreme Court, federal courts face the difficult prospect of justifying why specific kinds of personal data held by companies warrants Fourth Amendment protection. In these criminal cases, courts are understandably reluctant to hold that all such data is protected by the Fourth Amendment, and the government can frequently obtain personal information without a warrant. Thus, in the recent case of United States v. Graham , the Fourth Circuit held that location data in the possession of a phone company did not require a warrant before it was obtained by the police. [32]

From this perspective, we can see more clearly the context within which the problem of secret government surveillance must be understood. But many questions still remain. The challenge for the law and for lawyers, as is often the case in occasions of legal disruption, is to understand the best way to frame this issue in legal terms. Unfortunately, the problem of secret searches does not easily map onto existing legal structures. Technology has both enabled new forms of surveillance that are invisible to those being watched and destabilized the legal foundations on which those forms of surveillance have traditionally been assessed. [33] While most observers agree that the law has failed to keep up with technology, they differ (as the “Going Dark”/“Golden Age of Surveillance” example illustrates) about how to understand the nature of the problem, and thus how to fix it.

II. Secret Searches as Searches

The traditional way of understanding government searches is through the Fourth Amendment’s guarantee against unreasonable searches and seizures. From this perspective, secret searches raise a number of issues, but two are most important—the ways in which Fourth Amendment law has been adapted to new technological advances in general, and the specific substantive rules governing so-called “sneak and peek searches.”

A. The Fourth Amendment and Technology

As we have already seen, government surveillance techniques that allow secret access to digital files have destabilized the legal foundations of Fourth Amendment law. This is not the first time this phenomenon has occurred, however. In considering the effect of the communications revolution on Fourth Amendment law, it is helpful to consider the long process by which an earlier phase of that revolution—the telephone—was brought within the protection of constitutional law.

As electric and electronic technologies advanced over the twentieth century, and new forms of communication became possible, so too did new kinds of government surveillance and evidence-collection. One early example involved the telephone, which many criminals took to using in order to advance their enterprises. In Olmstead v. United States (1927), the Supreme Court considered whether the police needed to get a warrant in order to tap the phones of a Prohibition-era bootlegging conspiracy. Writing for the Court, Chief Justice William Howard Taft concluded that the government’s access of electrons on a wire owned by the telephone company did not violate any Fourth Amendment rights of the defendant. Because there was no physical trespass, there was thus no invasion of the Fourth Amendment’s textual protection of “persons, houses, papers, and effects.” [34]

In a famous dissent, Justice Louis Brandeis disagreed, making two points that continue to be relevant today: the importance of privacy to civil liberties against the state, and the importance of constitutional law evolving with the times to continue to protect the civil liberties that are necessary to democratic self-governance. Brandeis argued that privacy was important because it supported values that were critical to democratic self-government, including “the significance of man’s spiritual nature, of his feelings and of his intellect.” [35] This linkage of privacy against the state to democratic self-government protects an interest I have elsewhere called “intellectual privacy.” [36]

Brandeis also argued that constitutional law needed to evolve to take account of changed circumstances, or else the rights it guaranteed would become hollow and ineffective protections. For constitutions, he wrote:

They are, to use the words of Chief Justice Marshall, ‘designed to approach immortality as nearly as human institutions can approach it.’ . . . [T]herefore, our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. [37]

Accordingly, he argued, the principle of privacy against the state at the core of the Fourth Amendment needed to be extended to the non-physical invasion of wiretapping, an invention that enabled subtler and more effective forms of eliciting a confession than “stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.” [38] But crucially, Brandeis warned that the Fourth Amendment needed to continue to evolve. In a passage that seems to have uncannily foreseen the development of cloud computing, Brandeis predicted:

Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. [39]

In the ninety years since Justice Brandeis penned his dissent, his two principles of privacy and evolution have each risen to the forefront of Fourth Amendment law. His first notion, that privacy should be the primary touchstone of the Fourth Amendment, took forty years to be recognized, but after the case of Katz v. United States (1968), the government is required to obtain a warrant before it invades a zone protected by a person’s “reasonable expectation of privacy,” whether that place is a home, a car, a telephone call, or a smartphone. [40]

Brandeis’s second prediction—that the Fourth Amendment should evolve to keep up with technological and other social changes—also continues to bear fruit. As noted above, the Supreme Court seems to be receptive to the principle that Fourth Amendment privacy rights ought to be adapted in order to remain vital as technology advances. In the Riley case, in which the Court brought smartphone data within the protection of the Fourth Amendment, the Court found the fact that modern smart phones connect to cloud storage made them more deserving of privacy protection rather than less. [41] The same principles apply to other content stored in the cloud—what the Supreme Court referred to as “the sum of an individual’s private life.” [42] However, this task of adaptation or translation of constitutional principles to evolving technology remains very much a work in progress, and perhaps permanently so. Yet in considering the application of Fourth Amendment law to cloud computing, Brandeis’s cautionary prediction in Olmstead about the possibility of secret document production by the government remains important, particularly now that such technologies have been developed and deployed almost a century after he warned of their dangers. As I have argued at length elsewhere, the reading of the Fourth Amendment that is most faithful to its values seems to be that we should recognize that Fourth Amendment rights should be expanded to the cloud, and the broad reading of the third-party doctrine should be rejected as insufficiently protective of our vital civil liberties. [43]

B. Sneaking and Peeking

The protection against secret searches is deeply ingrained in the traditions of the Fourth Amendment. Current doctrine provides that if the government executes a search warrant, it has to give notice to the person being searched. In Berger v. New York , [44] a case decided the same term as Katz, the Supreme Court invalidated New York’s eavesdropping statute, partly because “the statute’s procedure . . . has no requirement for notice as do conventional warrants.” Several years later, in a case involving federal wiretapping law, the Court explained that “[t]he Berger and Katz decisions established that notice of surveillance is a constitutional requirement of any surveillance statute.” [45]

The rationale for notice is a straightforward one—the government’s power to engage in searches and seizures is one that is susceptible to abuse, and the targets of government searches have a right to know that the government has being trawling through their houses, papers, and effects (physical or digital). There are certainly legitimate law enforcement reasons for delayed notice in some circumstances—it would unreasonably hamper a government investigation for it to announce its presence on every phone call that it was wiretapping, for instance. Nevertheless, a government that is accountable to its citizens must, as the Supreme Court has recognized, let those citizens know at some reasonable time that it has been watching them, particularly when that watching has been directed at the constitutionally protected activities and places that the Fourth Amendment and its warrant requirement protects.

In the classic case of a physical search of a home, for example, it is difficult for the police to hide their activity. Homeowners tend to be at home and would notice searches, and physical searches by their nature tend to take time and to leave evidence of their occurrence. While it is possible for the police to wait until the homeowner leaves and perform so-called “sneak and peek” searches, these searches are limited in duration until the homeowner is due to return. “Sneak and peek” searches seem to have been initiated as part of the “War on Drugs” in the 1980s, but their use accelerated with the passage of the Patriot Act in 2001, particularly as applied to searches of digital records of emails and cloud documents held by Internet companies and other trusted intermediaries. [46] When these searches occur, the government tells only the intermediary and frequently places a gag order on that company to tell the subject of the search about its existence. Many of these gag orders are of indefinite duration; for example, the federal Electronic Communications Privacy Act allows the government to obtain a warrant from a cloud storage company of its company’s papers “without . . . notice to the subscriber or customer” and to obtain an injunction forbidding indefinitely the company from notifying anyone of the existence of the disclosure. [47]

Searches of this kind cut right at the splintering of the law that the information revolution has caused. The Government is able to use the third-party doctrine to argue that it does not need a warrant to obtain a person’s emails or documents from their cloud provider. At the same time, because digital searches are vastly less obvious to the suspect than old-fashioned physical searches, the government can use its statutory ability to obtain delayed notice and the suspect may never learn if the government has been reading her mail. Moreover, the digitization of searching acts as a kind of force multiplier that lets the government engage in vastly more digital searches than it could ever have had the resources to perform physically. In so doing, searches of this kind evade the two traditional non-legal restraints that the Supreme Court has identified in the Fourth Amendment context— “limited police resources and community hostility” to excessive surveillance. [48] They also threaten to replicate the problem of unregulated surveillance that Olmstead failed to halt in the telephone age for the Internet age we now live in.

III. Secret Searches as Censorship

Looking at secret searches as searches from the perspective of the Fourth Amendment thus reveals that they menace constitutional commitments at the core of what the Fourth Amendment protects—the importance of a detached magistrate consenting to the government intruding into a home or reading private papers. But there is another way to think about the threat that secret searches pose to civil liberties, which is to focus on their secrecy—the fact that they are unknown to the suspect and frequently accompanied by injunctions that prevent their disclosure. This perspective asks questions of the threat that secret searches pose to First Amendment values of free thought, free speech, and the relationships between free expression and democratic self-governance. As in the Fourth Amendment, there are two separate ways in which secret searches threaten constitutional values.

The most obvious way in which secret searches menace First Amendment values is that they restrict free speech at the core of what the First Amendment protects. The most basic and important justification for why free speech is protected under American constitutional law is because of its close relationship to the processes of democratic self-government. This explanation draws its lineage from important explanations offered by James Madison, Louis Brandeis, and Alexander Meiklejohn. [49] It also rests at the center of the most significant free speech cases decided by the Supreme Court, New York Times v. Sullivan (1964), [50] which instilled the commitment to “uninhibited, robust, and wide-open” public debate on government policy at the core of special protection for expression, and Reno v. ACLU (1998), [51] which extended that principle to digital expression. Under this theory, the “core meaning” of the First Amendment is that a self-governing citizenry must have the ability to discuss and pass judgment on the actions that elected and appointed government officials perform in their name. This notion, reflected most clearly in the writings of Louis Brandeis, also lies behind the core purpose of the Freedom of Information Act of 1966, [52] which safeguards the citizenry’s ability to know “what their government is up to.” [53] In order to fulfill this function, those citizens must have free access to the information and opinions of other people so that they can make a full and deliberately informed decision about how to govern themselves. Prior restraints on or subsequent punishment for expression related to those decisions can only be justified by government interests of the highest importance, strictly limited to those restrictions on expression that are absolutely necessary to advance those interests. In practice, this standard has proven very difficult for the government to meet. In the famous Pentagon Papers case, for instance, the U.S. government was unable to justify an injunction placed upon the New York Times to prevent publication of classified government reports about the conduct of the Vietnam War. [54]

From this perspective, we can see why secret government searches are so menacing to First Amendment values, and why injunctions of indefinite duration that protect secret searches are of dubious constitutionality under well-settled First Amendment law. The gag orders that prevent companies from letting their customers know that their records are being sent to the government prevent willing speakers (the companies) from communicating with willing listeners (the suspects) and the public at large. While it is plausible that there is a government interest in investigations that would justify a short-term delay in notification of suspects in order to prevent, for example, the destruction of evidence or the completion of a discrete investigation, this scenario does not accurately describe the current state of secret searches enjoined by gag orders. In litigation against the federal government alleging that secret searches under federal electronic surveillance law violate the First Amendment, Microsoft presented evidence that it received thousands of requests each year for customer data accompanied by legal orders silencing it from speaking about the requests, and that two-thirds of these injunctions had an indefinite duration. [55]

Prior restraints are straightforward interferences with First Amendment rights that are easy to understand. But secret government searches also menace First Amendment values in a second, more indirect way. This second way is more subtle, yet in the end represents an even greater threat to the ability to think and speak differently in dissent to the dominant view, even in a democracy. The fear that the government might, at any moment, be going through our papers, reading our diaries, and opening our mail cuts to the core of intellectual privacy, the protection from surveillance or interference when we are engaged in the processes of generating ideas—thinking, reading, and speaking with confidantes before our ideas are ready for public consumption. This unfettered ability to develop our political beliefs is at the core of intellectual, and thus political, freedom. Yet when we are watched, our speech, reading, and even our thinking incline to the boring, the bland, and the mainstream. This is particularly the case as ever more of our political and intellectual activities are mediated by information technology—the same information technologies that the government seeks to monitor through secret searches. [56]

The idea that when we are being watched we act in ways that are more socially acceptable has a long tradition in our legal and popular culture, from the First Amendment notion of chilling effects to literary and philosophical classics like George Orwell’s Nineteen-Eighty-Four and the work of Jeremy Bentham and Michel Foucault. [57] While First Amendment doctrine rarely requires proof of a chilling effect, there is nevertheless an emerging literature in the trans-disciplinary field of surveillance studies that has documented this effect with empirical evidence. [58] Moreover, in the years since Edward Snowden revealed the scope of government surveillance of digital technologies in Western democracies, a new body of scholarship has shown that electronic surveillance chills the exploration of unpopular political ideas, including the willingness to write about or use search engines to learn about controversial topics. [59]

First Amendment doctrine has been highly protective of the ability of speakers to express their opinions and beliefs without fear of legal consequences. Nevertheless, while it protects the public expression of those opinions, the doctrine has been far less sensitive to the processes by which those opinions come to be privately developed and tested before they are published. Nevertheless, secret surveillance poses a serious threat to both kinds of First Amendment values, when it censors the discussion of the practices of surveillance, and when it subtly but seriously inhibits the development of political and other forms of protected opinions and beliefs.

IV. Surveillance in a Digital Democracy

Secret surveillance is thus a problem that is increasing and menaces the foundational civil liberties protected in the United States by the Fourth and First Amendments. What then, should be done about this problem? Put more directly, how can we safeguard these vital and hard-won civil liberties to ensure that they remain protected in our increasingly digital democracy? This will be a complex challenge, and one that will go beyond simple fixes like trusting technological innovation or tweaking constitutional doctrine. Nevertheless, I believe that it can be done; indeed, it must be done if we do not wish our systems of progressive self-government to be left behind with the age of newsprint, radio, and paper ballots. In this Part, I offer four principles to guide us as we take on this challenge. These principles are: (1) Secret Surveillance is Illegitimate; (2) We Must Bring Surveillance Within the Fourth Amendment and (3) Within the First Amendment; and (4) Companies Must Be Part of the Solution.

At the outset, however, I want to be clear that it is not my argument that government surveillance has no place in a digital democracy. The criminal and existential risks that are often used to justify surveillance are real, and are threats to democracy themselves. But the evidence seems undeniable that unchecked or insufficiently-checked secret surveillance can also threaten democratic self-government and political liberties are sometimes taken for granted. We must chart a delicate path between these risks, and the four principles that follow are offered as an initial plan for how to do it.

A. Secret Surveillance is Illegitimate

Truly secret surveillance has no place in a democracy. In a democratic society, in which the people constitute and control the government that acts in their name, the people must also have the right to consent to what the government does in their name. This includes the right to consent to government surveillance programs, at least with respect to the nature and broad scope of these programs. This does not mean, of course, that the government needs to notify the subjects of targeted surveillance at the time of the interception. It would be counter-productive, even absurd, to require the government to come on the phone to let us know that our call might be recorded, in the manner of a corporate customer service line “for quality assurance.” Nevertheless, the problem alleged in the Microsoft gag order suit—that vast amounts of personal data can be obtained from companies about their users under indefinite court orders of secrecy—is inconsistent with the principle that secret surveillance is illegitimate. This is particularly the case when surveillance powers justified under the existential threat of terrorism drift into becoming “business as usual” tools for the investigation of drug crimes and other infractions of the ordinary criminal law. In these cases, the secrecy of the programs enables this mission creep by eliminating public accountability.

The typical response to calls for increased regulation of secret surveillance is that it makes us less safe, that criminals and other malfeasants who know about surveillance techniques will be able to adapt to them and evade them. This argument certainly has some validity, but there are, I think, two powerful responses to it. First, perfect security is an illusion. No society, whether democracy or police state, has ever achieved perfect security. In our daily lives, we constantly make calculated risks in which we trade off security against other values, be they convenience, pleasure, commercial or personal opportunity, or privacy. Humans drive cars and fly in airplanes, they use credit cards, eat unhealthy but often delicious foods, and expose themselves to germs and other risks. Risks of crime (or even terrorism) may upset our calculus of risk because they are extraordinary, but many of these risks are irrational. Rather than pursue the chimera of perfect security, we should instead think rationally about these sorts of risks and not fall into the seductive but ultimately unsatisfying trap of a state of perfect surveillance but nevertheless imperfect security.

Second, even if increased surveillance may make us safer against criminals (though this is itself a debatable proposition [60] ), unregulated and under-regulated surveillance carries risks of its own. The mounting body of evidence that unchecked or under-regulated surveillance can inhibit engagement with potentially controversial ideas seems well-founded. The personal dangers of this surveillance also go beyond the psychological inhibition that the surveillance literature documents. Consider in this context the NSA surveillance of the pornography habits of political minorities discussed earlier. While that program appears to have been authorized, the history of government surveillance in all countries appears littered with abuses. The most recent debate over surveillance prompted by Edward Snowden brought to light the infamous “LOVEINT” practice of NSA officers occasionally using their surveillance tools in violation of agency practices to spy on love interests—spouses, partners, or potential future partners. [61] Much more serious infractions have been discovered in the less recent history of American surveillance authorities. The FBI under J. Edgar Hoover became infamous for warrantless surveillance of dissidents on political grounds, a practice that was brought to light by the “Church Committee,” a Senate committee constituted in the aftermath of Watergate to study intelligence abuses. [62] The worst abuse was undoubtedly the letter sent to Martin Luther King, Jr., whom the FBI had surveilled on the belief that his civil rights activities were being controlled by Moscow. The FBI discovered that King was acting on his own volition, but that he was having an extramarital affair, and sent him an anonymous letter with evidence of the infidelity and a thinly-veiled threat that he would be exposed if he did not commit suicide. [63]

The King episode points up one of the chief dangers of secret, unconstrained surveillance—widespread surveillance can be used against political enemies to blackmail or discredit. Indeed, this impulse was precisely the one motivating the government’s recent attempt to monitor pornography use by “radicalizers.” One does not need too vivid an imagination to contemplate surveillance and selective leaking of the secrets of politicians for political gain.

We can hope of course that our surveillance authorities act with the professionalism that their public trust demands. But law in general (and constitutional law in particular) exists in part to check against the excesses of unconstrained power. As Justice Brandeis reminded us in his opinion in Olmstead , concluding his analysis of the Fourth Amendment question, “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.” [64] Checks and balances embodied in law will remain important if we are to gain the undeniable benefits of regulated surveillance while avoiding the undeniable dangers of insufficiently-regulated surveillance.

B. Bringing Surveillance Within the Fourth Amendment

One important check and balance that could serve to bring surveillance more squarely within bounds would be to recognize the limitations of the broad reading of the third-party doctrine that suggests that any information shared with another entity loses the protection of the Fourth Amendment, even where that entity is a trusted digital intermediary such as an email provider or secure cloud storage or backup service.

One obvious solution to this problem would be to use Fourth Amendment doctrine to restore the balance that physical searches and limited non-electronic resources provided until recently by affirming that warrants are required before the government can obtain electronic letters or papers held by trusted intermediaries, and that even when such warrants are obtained, indefinitely delayed notice (particularly enforced by injunction) is constitutionally unreasonable. But the existence of federal statutes that purport to allow vast secret searches at scale means that the final source of these rules will ultimately have to be the Supreme Court. An important first step would be for the Court to take Justice Sotomayor’s invitation to curtail the third-party doctrine, particularly in the context of electronic information, a proposal I have written about at length elsewhere. [65]

There will of course be difficult cases. Not all kinds of electronic information are as analogous to postal mail and telephone contents as emails and cloud documents are. Reasonable minds can differ about the treatment of, for example, cell phone location data or call record “metadata.” In addition, constitutional doctrine is often insufficiently granular to prescribe the detailed procedures that are necessary to regulate something so complex as electronic surveillance. Recognizing these problems, California recently passed the California Electronic Communications Privacy Act, which went into effect on January 1, 2016. [66] This law, better known as “CalECPA,” is a broad protection of electronic information that requires California police to obtain a warrant before they access electronic information either digitally or from a physical device such as emails, stored documents, or the “metadata” associated with electronic information. [67] Although CalECPA only applies in California, it is a well-drafted statute that could serve as a model for the reform of the Federal Electronic Communications Privacy Act, which has become substantially outdated since its passage in 1986.

C. Bringing Surveillance Within the First Amendment

In updating our laws to ensure they continue to reflect and protect our fundamental civil liberties in digital contexts, we must ensure that First Amendment rights and values are protected as well as Fourth Amendment ones. As discussed earlier, secret government searches of digital information raise two distinct challenges to First Amendment values.

The first of these is the idea that it is a kind of censorship or prior restraint when intermediaries are served with secret search orders for their customers’ data, but are indefinitely barred from disclosing the order. This is a credible First Amendment argument with much to recommend it, though this is a somewhat surprisingly complex area of First Amendment law, in which the doctrine is still under-developed. There have been a series of challenges to gag orders in the context of National Security letters, and after much litigation some lower courts have found that they may violate the First Amendment. [68] To be properly resolved, however, this issue needs to go to the Supreme Court, and the Microsoft litigation discussed above represents a likely well-briefed opportunity for the Supreme Court to weigh in and set some parameters for this important issue. In the meantime, a number of technology companies have sought to partially fill the knowledge gap by publishing “transparency reports”—regular statements publishing, in anonymized form, aggregate data about how many and what types of government information requests and orders they receive. [69]

The second challenge posed by secret government searches is their threat to intellectual privacy. The awareness that our reading, searching, browsing, and video-watching activities might not be private chills our willingness to engage, freely and fearlessly, with ideas that others might think to be dissident, dangerous, deviant, or just plain eccentric. [70] I have also written at length about this problem (and possible solutions to it), but the basic solution must be to use a combination of legal tools to ensure that when people read, think, and engage in these and other processes of intellectual and personal exploration and wondering, they have meaningful guarantees that their mental wonderings and wanderings are not being tracked by government or corporate surveillance systems. [71] Our digital society is increasingly characterized by informational distrust, whether distrust of the rules that govern access to ostensibly private personal information, [72] or distrust in the bias or falsity of information received from online media. [73] One of the great challenges of our time will be to use law and other tools to build and restore trust in the structures through which information about ourselves and our society is collected and used. Secret government searches are but one part of this problem, but bringing them within the rule of law will be an important part of the solution.

One small but important step that can be taken to fix this situation is to remove one of the many obstacles to courts assessing the lawfulness of government surveillance, which is the increasingly strict reading of standing doctrine that the Supreme Court has been applying in privacy cases. Thus, in Clapper v. Amnesty International (2013), lawyers, journalists, and human rights activists who spoke frequently with non-U.S. clients and contacts about sensitive topics were found to be unable to bring First and Fourth Amendment challenges to the federal law authorizing the surveillance because they lacked standing to sue under Article III of the Constitution. [74] The Supreme Court dismissed their suit because they could not prove that they were being targeted by the government, even though the government, as defendant, surely knew whether it was monitoring the civil society plaintiffs or not. [75] In so doing, the Court needlessly read the doctrines strictly in a way that denied the ability of the plaintiffs to challenge the consistency of the broad surveillance program with the First Amendment. [76] In the Court’s most recent privacy standing case, it similarly signaled that the requirements of standing in privacy cases seem to be getting stricter, rather than more permissive. [77] Yet given the threat that secret government surveillance poses to the important values of intellectual privacy and intellectual freedom more generally, it would be a step in the right direction to, at a minimum, subject these programs to constitutional review, even if they are ultimately found to survive it.

D. Companies Must Be Part of the Solution

One fundamental difference between the problem of digital surveillance and surveillance issues of the past is the importance of intermediaries. In one sense, Fourth Amendment communications privacy issues outside the home have always involved intermediaries. Companies providing mobile telephone and data, email, or cloud services are certainly the modern analogues of the postal service or the telephone company. But as the Supreme Court recognized in Riley , the volume and variety of information stored on (for example) a modern smartphone changes the situation considerably. As the Court noted, “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” [78] Along these lines, a company providing cloud storage of data (such as Google, Microsoft, Dropbox, or Carbonite) starts to closely resemble the future technology envisioned by Justice Brandeis in Olmstead , which would enable the reproduction in Court of documents stored in a locked desk drawer. [79]

However we characterize them in descriptive or legal terms—trusted third parties, custodians of our data, or information fiduciaries—intermediaries are inextricably linked to the problem of digital records privacy. Consequently, they must also be part of the solution. Our legal responses to this problem must take into account not only that cloud and other technology companies are entrusted with vast amounts of personal data, but also that the humans who constitute our digital society frequently have little choice about the fact or the terms of that entrustment, at least if they want to participate as ordinary members of that society. [80] The constitutional doctrines and statutory schemes that we use to regulate digital technologies must reflect these nuances, and not rest on blunt and unhelpful distinctions like Olmstead ’s trespass theory of the Fourth Amendment or the third-party doctrine’s suggestion that Fourth Amendment rights are waived in whatever is shared or entrusted to others.

Not only must we ask more of our legal rules as they apply to companies, but we also must ask more of those companies when they confront those legal rules. If we wish to have meaningful privacy and information security, we must demand that companies take steps to protect us, and to help us better protect ourselves. It is in this light that the recent legal struggles between Apple and Microsoft, on the one hand, and federal law enforcement agencies, on the other, are the most encouraging. So too, is the trend towards companies issuing more frequent and more detailed transparency reports, [81] though we must also recognize that transparency reports are merely one small step towards redressing the power imbalance created by secret government searches of digital records. To be sure, corporate efforts to provide protection for their users’ civil liberties and transparency of government efforts to encroach upon their privacy are at least partly motivated by business considerations. The trust of their customers is among the most valuable assets technology companies possess, and that trust is threatened by the fear that providers of email, cloud, search, and social media services might be in league with, or compliant to, law enforcement. But the alignment of civil liberties and corporate self-interest is by no means a bad thing, at least as long as those interested in civil liberties are aware of the limitations of corporate self-interest.

Perhaps the best solution to the problem of privacy in a digital age rests on finding an equilibrium, a balance between government and corporate power in the interests of human individuals. As citizens, those humans should seek to have the civil authorities of government regulate companies through law in the public interest. And as consumers, they should push companies through market mechanisms to check the secret surveillance of the government’s criminal authorities. Whatever balance of power is ultimately produced from these processes, though, it is evident that companies must be an important part of reaching that balance.

The digital revolution has changed much, and one of the most significant changes is the vast amount of personal data that is created and stored remotely in networked (or “cloud”) storage. The mere fact that this information exists means that we must understand that we are in fact living in a “golden age of surveillance.” As Lawrence Lessig argued over two decades ago, the Digital Revolution presents the problem of translation: How shall we translate our hard-won protections of civil liberties into the digital environment? [82] How we respond to this challenge will be our generation’s defining legacy of civil liberties. It will determine whether we are remembered as fondly as the civil liberties activists of the 1960s, or as ashamedly as the protagonists of the Red Scares of the 1920s and 1950s. More fundamentally, it will determine whether our hard-won civil liberties endure, or whether they fail to survive the digital transformation and become remembered (if they are remembered at all) as an accident of history.

Thomas & Karole Green Professor of Law, Washington University School of Law; Affiliate Scholar, The Center for Internet and Society at Stanford Law School; Affiliated Fellow, Yale Information Society Project. Many thanks to Danielle Citron and Woody Hartzog for their comments on earlier drafts. ↑

George Orwell, Nineteen Eighty-Four (1949) (“The telescreen received and transmitted simultaneously. Any sound Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever the wanted to. You had to live --  did live, from habit that became instinct - - in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.”). ↑

Spencer Ackerman & James Ball, Optic Nerve: millions of Yahoo webcam images intercepted by GCHQ , The Guardian (Feb. 28, 2014), https://www.theguardian.com/world/2014/feb/27/gchq-nsa-webcam-images-internet-yahoo . ↑

Glenn Greenwald, Ryan Grim & Ryan Gallagher , Top-Secret Document Reveals NSA Spied On Porn Habits As Part Of Plan To Discredit ‘Radicalizers’ , Huffington Post (Nov. 26, 2013), http://www.huffingtonpost.com/2013/11/26/nsa-porn-muslims_n_4346128.html ; Max Ehrenfreund, NSA reportedly monitored pornography viewed by suspected Islamists , Wash. Post. (Nov. 27, 2013), https://www.washingtonpost.com/world/national-security/nsa-reportedly-monitored-pornography-viewed-by-suspected-islamists/2013/11/27/5f4eac64-5778-11e3-ba82-16ed03681809_story.html . ↑

Emily Dreyfuss, On John Oliver, Edward Snowden Says Keep Taking Dick Pics , WIRED (Apr. 6, 2016), https://www.wired.com/2015/04/john-oliver-edward-snowden-dick-pics/ . ↑

Evgeny Morozov, The Net Delusion: The Dark Side of Internet Freedom (2012). ↑

Here I borrow Jay Stanley’s helpful term. See Jay Stanley, The Surveillance-Industrial Complex: How the American Government Is Conscripting Businesses and Individuals in the Construction of a Surveillance Society , ACLU Report (2004), https://www.aclu.org/sites/default/files/FilesPDFs/surveillance_report.pdf . ↑

In the Matter of the Search of an Apple iPhone Seized During the Execution of a Search Warrant on a Black Lexus IS300, Calif. License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401 (C.D. Cal. Feb. 16, 2016). Microsoft Corp. v. United States , No. 14-2985-cv (2d Cir. 2016); Microsoft Corp. v. United States Dep’t of Justice, et al. , 2016 WL 1464273 (W.D. Wash. 2016). ↑

For a similar argument, see Julie E. Cohen, Cyberspace as/and Space , 107 Colum. L. Rev. 210 (2007). ↑

James B. Comey, Going Dark: Are Technology, Privacy, and Public Safety on a Collision Course? (Oct. 16, 2014), https://www.fbi.gov/news/speeches/going-dark-are-technology-privacy-and-public-safety-on-a-collision-course . ↑

Going Dark: Encryption, Technology, and the Balance Between Public Safety and Privacy, Testimony of Peter Swire, Senate Judiciary Committee (July 8, 2015), http://www.judiciary.senate.gov/imo/media/doc/07-08-15%20Swire%20Testimony.pdf . ↑

15 U.S.C. § 1801. ↑

18 U.S.C. § 2703; 2705(b). ↑

There are four federal statutes that allow NSLs: the Electronic Communications Privacy Act (18 U.S.C. § 2709), the National Security Act (50 U.S.C. § 3162), the Right to Financial Privacy Act (12 U.S.C. § 3414), and the Fair Credit Reporting Act (15 U.S.C. § 1681), with significant amendments added by the USA PATRIOT Act (Section 505, P.L. 107-56, 115 Stat. 365-66 (2001)), and the USA Patriot Act Reauthorization of 2006 (P.L. 109-178, 120 Stat. 278 (2006)). See generally Electronic Frontier Foundation, National Security Letters: FAQ , https://www.eff.org/issues/national-security-letters/faq#38. ↑

Facebook Transparency Report: United States (July 2015—Dec. 2015), https://govtrequests.facebook.com/country/United%20States/2015-H2/. ↑

E.g ., American Civil Liberties Union, You Are Being Tracked: How License Plate Readers are Being Used to Record Americans’ Movements (July 2013); Cyrus Farivar, We know where you’ve been: Ars acquires 4.6M license plate scans from the cops , Ars Technica, March 24, 2015, http://arstechnica.com/tech-policy/2015/03/we-know-where-youve-been-ars-acquires-4-6m-license-plate-scans-from-the-cops/ . ↑

Declan McCullagh, FBI taps cell phone mic as eavesdropping tool , CNET (Dec. 4, 2006), https://www.cnet.com/news/fbi-taps-cell-phone-mic-as-eavesdropping-tool/ . ↑

Camille Francois, Self-Driving Cars Will Turn Surveillance Woes into a Mainstream Issue , WIRED (May 30, 2014), https://www.wired.com/2014/05/self-driving-cars-will-turn-surveillance-woes-into-a-mainstream-issue/ . ↑

E.g ., David Goldman, Your Samsung TV Is Eavesdropping on Your Private Conversations , CNN.com (Feb. 10, 2015), http://money.cnn.com/2015/02/09/technology/security/samsung-smart-tv-privacy/index.html . ↑

Kevin Kelly, The Untold Story of Magic Leap, The World’s Most Secretive Startup , WIRED (May 2016), https://www.wired.com/2016/04/magic-leap-vr/ . ↑

Illinois v. Lidster , 540 U.S. 419, 426 (2004). ↑

United States v. Miller , 425 U.S. 435 (1976); Smith v. Maryland , 442 U.S. 735 (1979). ↑

Ex Parte Jackson , 96 U.S. 727, 732–33 (1877) (requiring a warrant before the government may open letters in the possession of the postal service); Katz v. United States , 389 U.S. 347 (1967) (requiring a warrant before the government listens to a telephone call). ↑

18 U.S.C. § 2501 et seq. ↑

Steven M. Bellovin et al.  It’s Too Complicated: How the Internet Upends Katz, Smith, and Electronic Surveillance Law , Harv. J. L. & Tech. (forthcoming 2017), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2791646 . ↑

E.g. , Susan Freiwald, First Principles of Communications Privacy , 2007 Stan. Tech. L. Rev. 3, 4 (2007); Erin Murphy, The Case Against the Case for the Third-Party Doctrine: A Response to Epstein and Kerr , 24 Berkeley Tech. L.J. 1239, 1241 (2009); Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment 66 (2007); Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security 110 (2011); Jay Stanley, The Crises in Fourth Amendment Jurisprudence, Am. Const. Soc’y for L. & Pol. 4 (2011), https://www.acslaw.org/publications/issue-briefs/the-crisis-in-fourth-amendment-jurisprudence-0 ; Katherine J. Strandburg, Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change , 70 Md. L. Rev. 614, 619 (2011). But see Orin Kerr, The Case for the Third-Party Doctrine , 107 Mich. L. Rev. 561 (2009); Orin Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution , 102 Mich. L. Rev. 801 (2004); Orin Kerr & Greg Nojeim, The Data Question: Should the Third-Party Records Doctrine Be Revisited? , A.B.A. J. (Aug. 1, 2012, 4:20 AM), http://www.abajournal.com/magazine/article/the_data_question_should_the_third-party_records_doctrine_be_revisited/ . ↑

United States v. Warshak , 631 F.3d 266 (6th Cir. 2010). ↑

E.g ., Kyllo v. United States , 533 U.S. 27 (2001) (homes); United States v. Jones , 132 S.Ct. 945 (2012) (cars); Riley v. California , 573 U.S. ___ (2014) (smartphones). ↑

Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J., concurring). ↑

Id . For a thoughtful reading of Jones and Riley along similar lines , see Ryan Watzel, Riley’s Implications for Fourth Amendment Protection in the Cloud , 124 Yale L.J. F. 73 (2014), http://www.yalelawjournal.org/forum/rileys-implications-in-the-cloud . ↑

United States v. Graham , 796 F.3d 332, 354 (4th Cir.), reh’g en banc granted, 624 F. App’x 75 (4th Cir. 2015). ↑

See also Laura Donohoe. ↑

Olmstead v. United States , 277 U.S. 438, 466 (1928). ↑

Id. at 478 (Brandeis, J., dissenting). ↑

Neil Richards, Intellectual Privacy (2015); Neil M. Richards, The Dangers of Surveillance , 126 Harv. L. Rev. 1934 (2013). ↑

Olmstead, 277 U.S . at 472–73 (Brandeis, J., dissenting). ↑

Id. at 473–74 (Brandeis, J., dissenting). ↑

Id. at 474 (Brandeis, J., dissenting). ↑

E.g ., Wilson v. Layne , 526 U.S. 603 (1999) (home); Kyllo v. United States , 533 U.S. 27 (2001) (homes); United States v. Jones , 132 S.Ct. 945 (2012) (cars); United States v. Katz , 389 U.S. 347 (1967) (telephone call); Riley v. California , 573 U.S. ___ (2014) (smartphones). ↑

Riley v. California , 134 S. Ct. 2473, 2489, 2491 (2014). ↑

See Neil M. Richards, Privacy and the Future of the Cloud , Wash. U. L. Rev. (forthcoming 2017). ↑

388 U.S. 41, 60 (1967). ↑

United States v. Donovan , 429 U.S. 413, 430 (1977). ↑

Jonathan Witmer-Rich, The Rapid Rise of Delayed Notice Searches, and the Fourth Amendment “Rule Requiring Notice,” 41 Pepperdine L. Rev. 3 (2013). ↑

18 U.S.C. §§ 2703; 2705(b). ↑

E.g ., James Madison, The Virginia Report Of 1799–1800, Touching The Alien And Sedition Laws; Together With The Virginia Resolutions 227 (J.W. Randolph ed., 1850); Whitney v. California , 274 U.S., 357 377 (1927) (Brandeis, J., concurring); Alexander Meiklejohn, Free Speech And Its Relation To Self-Government 27 (1948). ↑

376 U.S. 254 (1964). ↑

Reno v. American Civil Liberties Union , 521 U.S. 844 (1997). ↑

Freedom of Information Act of 1966, 5 U.S.C. § 552. ↑

Dep’t of Justice v. Reporters Committee for Freedom of the Press , 489 U.S. 749 (1989). ↑

New York Times Co. v. United States , 403 U.S. 713 (1971). ↑

First Amended Complaint, Microsoft Corp. v. United States at ¶ 5, No. 2:16-cv-00538-JLR, W.D. Wash., June 17, 2016. ↑

See generally Richards, Intellectual Privacy, supra note 36. ↑

Jeremy Bentham, Panopticon , in 3 Opinions Of Different Authors Upon The Punishment Of Death 321, 328 (Basil Montagu ed., 1816); Michel Foucault, Discipline and Punish 200 (1975); Orwell, supra note 2. ↑

For an introduction to the surveillance studies literature, see, e.g ., David Lyon, Surveillance Studies (2007); Surveillance and Democracy (Kevin D. Haggerty & Minas Samatas eds., 2010); The Surveillance Studies Reader (Sean P. Hier & Joshua Greenberg eds., 2007). ↑

See generally Margot E. Kaminski & Shane Witnov, The Conforming Effect: First Amendment Implications of Surveillance, Beyond Chilling Speech , 49 U. Rich. L. Rev. 465, 467 (2015) (“If the First Amendment serves to foster a marketplace of ideas, surveillance thwarts this purpose by preventing the development of minority ideas.”). See also Christopher Campbell & Rosamunde Van Brakel, Privacy as a line of flight in societies of mass surveillance , Ethical Space: International Journal of Communication Ethics 12(3/4): 39-46 (2016); Creating Law Enforcement Accountability & Responsibility (CLEAR) Project, CUNY School of Law, Mapping Muslims: NYPD Spying and its Impact on American Muslims (Mar. 11, 2013) http://www.law.cuny.edu/academics/clinics/immigration/clear/Mapping-Muslims.pdf ; Keith N. Hampton Et Al., Social Media And The Spiral Of Silence , Pew Research Ctr. 8, 23 (2014); Human Rights Watch & ACLU, With Liberty To Monitor All: How Large-Scale U.S. Surveillance Is Harming Journalism , Law And American Democracy (July 2014), https://www.hrw.org/sites/default/files/reports/usnsa0714_ForUPload_0.pdf ; Alex Marthews & Catherine Tucker, Government Surveillance and Internet Search Behavior (Apr. 29, 2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2412564 ; PEN America, Chilling Effects: NSA Surveillance Drives U.S. Writers to Self-Censor (Nov. 12, 2013), https://pen.org/sites/default/files/Chilling%20Effects_PEN%20American.pdf ; Jonathan W. Penney , Chilling Effects: Online Surveillance and Wikipedia Use , 31 Berkeley Tech. L.J. 117 (2016). ↑

E.g ., Danielle Keats Citron & Frank A. Pasquale III, Network Accountability for the Domestic Intelligence Apparatus , 62 Hastings L.J. 1441 (2011). ↑

Andrea Peterson, LOVEINT: When NSA Officers Use Their Spying Power on Love Interests , Wash. Post (Aug. 24, 2013), https://www.washingtonpost.com/news/the-switch/wp/2013/08/24/loveint-when-nsa-officers-use-their-spying-power-on-love-interests/   ↑

2 Intelligence Activities and the Rights of Americans, Final Report Of The Select Committee To Study Government Operations With Respect To Intelligence Activities 5, 10, 15 (Apr. 26, 1976); William McGeveran, Privacy and Data Protection Law 562 (2016). ↑

David J. Garrow, The FBI and Martin Luther King, Jr. (1981). ↑

Olmstead, 277 U.S. at 479 (Brandeis, J., dissenting). In his opinion for the Court in United States v. United States District Court , 407 U.S. 297 (1972), Justice Powell made a similar observation, noting that “History abundantly documents the tendency of Government—however benevolent and benign its motives—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect ‘domestic security.’ Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent.” ↑

See Richards, Privacy and the Future of the Cloud , supra note 43. ↑

California Electronic Communications Privacy Act, SB 178, 2015, codified at Cal. Penal Code §§ 1546 -1546.4. (In full disclosure, I signed a letter written to California Governor Edmund G. Brown, Jr. on behalf of a number of legal scholars that asked the Governor to sign rather than veto the bill). See Letter of Legal Scholars to Governor Brown (Sept.12, 2015), https://www.aclunc.org/sites/default/files/SB178ScholarsSupport.pdf . ↑

Cal. Penal Code §§ 1546 -1546.1. ↑

E.g ., Doe v. Ashcroft , 334 F. Supp. 2d 471 (S.D.N.Y. 2004), vacated on other grounds Doe v. Gonzales , 449 F. 3d 415 (2d Cir. 2006); In re National Security Letter , 930 F. Supp. 2d 1064 (2013). ↑

For particular companies’ transparency reports, see Google Transparency Report, https://www.google.com/transparencyreport/ ; Twitter Transparency Report, https://transparency.twitter.com/ ; Dropbox Transparency Report, https://www.dropbox.com/transparency/ . ↑

See Richards, Intellectual Privacy , supra note 36. ↑

See. e.g ., id .; Neil M. Richards, The Perils of Social Reading , 101 Geo. L.J. 689 (2013). ↑

Neil Richards & Woodrow Hartzog, Taking Trust Seriously in Privacy Law , Stan. Tech. L. Rev. (forthcoming 2017). ↑

John Herrman, Fixation on Fake News Overshadows Waning Trust in Real Reporting , NY Times, (Nov. 18, 2016), http://www.nytimes.com/2016/11/19/business/media/exposing-fake-news-eroding-trust-in-real-reporting.html ; Sapna Maheshwari, How Fake News Goes Viral , NY Times (Nov. 20, 2016), http://www.nytimes.com/2016/11/20/business/media/how-fake-news-spreads.html?_r=0 . ↑

133 S.Ct. 1138 (2013). ↑

See id . at 1149 n.4. ↑

See Richards, The Dangers of Surveillance , supra note 36. ↑

Spokeo v. Robins , 136 S.Ct. 1550 (2016). ↑

Riley v. California , 134 S. Ct. 2473, 2491 (2014). ↑

Olmstead , 277 U.S. at 474 (Brandeis, J., dissenting). ↑

Richards & Hartzog, supra note 72. ↑

See Kashmir Hill, Thanks, Snowden! Now All The Major Tech Companies Reveal How Often They Give Data To Government , Forbes (Nov. 14, 2013), http://www.forbes.com/sites/kashmirhill/2013/11/14/silicon-valley-data-handover-infographic/#3cf10fc66d06 . ↑

Lawrence Lessig, Fidelity in Translation , 71 Tex. L. Rev. 1165 (1993); see also Lawrence Lessig, Code and Other Laws of Cyberspace (2000) (applying this argument to the digital environment). ↑

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Home — Essay Samples — Government & Politics — Government Surveillance

Essays on Government Surveillance

Embark on an in-depth exploration of government surveillance with our collection of essay samples. As a pivotal issue at the intersection of technology, law, and ethics, government surveillance offers a rich field of study for students across disciplines. These essays serve as exemplary models, dissecting the multifaceted arguments surrounding privacy rights, national security, and the balance of power.

Government Surveillance: A Multidimensional Perspective

Our essays on government surveillance delve into historical contexts, legal frameworks, and ethical considerations. Students can gain insights into the evolution of surveillance technologies, the legal battles over privacy rights, and the ethical dilemmas posed by state monitoring. These samples provide a comprehensive overview of the debates that define the discourse on government surveillance.

Analyzing the Impact of Surveillance on Society

The collection includes essays that evaluate the broader societal impacts of government surveillance . From the chilling effects on free speech to the implications for democratic freedoms, these essays encourage critical analysis of how surveillance shapes individuals' lives and society at large. Students are invited to engage with complex questions about the trade-offs between security and liberty.

Exploring Global Perspectives on Surveillance

Recognizing the global nature of government surveillance, our essays also feature comparative analyses of surveillance practices around the world. This global perspective enriches students' understanding of how different legal systems and cultural values influence the implementation and perception of surveillance.

A Resource for Critical Thinking and Academic Inquiry

Designed to support students in their academic endeavors, this collection of government surveillance essay samples is an invaluable resource for research, writing, and debate. By presenting well-crafted arguments and diverse viewpoints, these essays inspire deeper inquiry into one of the most pressing issues of our time.

The Effects on Online Surveillance by Government

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Government Internet Surveillance: Privacy Threat Essay

Introduction, the internet and surveillance, us government surveillance, surveillance efforts a threat to privacy and civil rights, justification for surveillance, discussion and conclusion.

The internet is the most important invention of the twentieth century and it has dramatically transformed human life. This invention has greatly increased the speed and efficiency with which communication occurs. Its unrivalled benefits in information processing have made this technology a part of most aspects of modern-daily activities.

Boghosian (2013) notes that while the internet plays a major role in improving life in our society, some sinister applications of this invention undermine privacy and civil rights. Perhaps the most troubling applications of the internet in current times are the mass surveillance efforts by the US government. This paper will argue that government internet surveillance is a threat to the privacy and civil rights of US citizens and it must therefore be mitigated.

Government surveillance has existed in various forms for centuries. Through this activity, the government has been able to obtain valuable public and secret information and act on it to aid governance. The internet age has dramatically increased the ability of government to engage in surveillance.

To begin with, the internet has become the most common medium of communication for many people. By monitoring this single communication network, the government has access to virtually all information that is communicated electronically including email habits, credit card, bank records, and phone records (Regan, 2014). The advancement in storage technology has contributed to the pervasive surveillance carried out by the US.

Today, the data that can be stored is nearly infinite due to the tremendous growth in storage capacity and the decline in storage prices. Intelligence agencies are therefore able to collect all available data since it is cheaper and easier than trying to determine what data should be stored and what should be ignored. At the same time, sophisticated computer algorithms make it possible for government agencies to analyze large amounts of data and derive meaning from it.

Scherer (2013) states that while electronic intelligence in the US historically focused on foreign governments, the events of 9/11 led to an increased focus on American citizens. Starting from that year, the NSA turned inward and shifted its focus to include private individuals. This shift was prompted by the understanding that the perpetrators of the 9/11 attacks had resided in the US and made their plans while living in the country. Since then, the government has engaged in widespread surveillance of its citizens in an attempt to prevent crime.

The internet has made it possible for the government to engage in mass surveillance. Through security apparatus such as the NSA, the American government can collect and analyze vast quantities of data about its citizens. These activities often take place without the consent or knowledge of the individual.

Revelations by Snowden showed that the government engaging in surveillance at a scale that a majority of society did not even think was possible (Scherer, 2013). Through US dedicates more than $52.6 billion each year to run a massive secret national security apparatus. This apparatus includes the NSA, which has over 30,000 employees and gathers and stores not only phone records in the US but also metadata on internet traffic.

To increase its surveillance abilities, the US government has engaged in programs aimed at influencing IT companies to provide the NSA with a back door to encrypted communications. Scherer (2013) documents that through such a program, the government denies private citizens of their right to create unbreakable encryption software.

Wide scale surveillance by the government has harmed the privacy rights of US citizens. Government internet surveillance efforts result in a violation of individual privacy as the government intercepts the personal information and communication from US citizens. For privacy to exist, an individual has to have control over himself and the information he shares with others.

Boghosian (2013) notes that attempts to safeguard the privacy of American have been compromised by the government’s demand for unrestricted access to information. Under the Patriot Act, the government has access to a wide array of personal information. Through the National Security Administration (NSA), the government has engaged in large-scale data collection on US citizens.

This data is then analyzed in an effort to identify suspects. However, this data can be used to obtain more information about the private lives of Americans thus violating individual privacy.

The right to free speech and association are affected by the existence of extensive internet surveillance programs. According to the freedom of speech right, an individual is entitled to communicate his personal opinion or ideas with others without the fear of repercussions. The freedom of association guarantees an individual the right to relate with persons or groups of his choosing without any external inhibitions.

Purkayastha and Bailey (2014) observe that mass surveillance undermines free speech as individuals may face retaliation action if they are critical of the government. The government may engage in steps to silence critics who are identified through the surveillance efforts. Private Citizens concerned that their communications may be under surveillance are likely to avoid making their opinions public out of fear of government reprisal. Internet surveillance will therefore have led to the violation of the civil rights of these US citizens.

Government surveillance violates the location privacy of an individual. Boghosian (2013) defines location privacy as the right of an American to move in public without being tracked on monitored. This right is violated by unrestricted surveillance by the government. By monitoring Global Positioning System (GPS) devices, the government can record the precise movement of an individual. His/her exact location at any time can be record and stored helping to create an elaborate profile on the individual’s movement patterns.

The Fourth Amendment, which guarantees Americans protection against unreasonable searchers and seizures is violated by the undiscriminating internet surveillance. Through this mass collection and scrutinizing of personal information, the government violates the requirements of the Fourth Amendment. Scherer (2013) confirms that unreasonable searches that take place with no justification characterize the internet surveillance carried out by the government. The government collects data from all citizens and then analyzes this information in the hope of finding patterns that will help identify criminals.

The US government has justified its aggressive surveillance activities as necessary efforts for the enhancement of national security. In a speech on the importance of surveillance, the US President Barack Obama asserts that these activities enable law enforcement officers to detect terrorists and prevent them from carrying out attacks against the US (Obama, 2014). Even ordinary US citizens recognize this positive role of internet monitoring.

While most Americans are opposed to government surveillance, there is a recognition that the government might need to engage in monitoring efforts in order to safeguard the homeland. Scherer (2013) notes that according to polls, a majority of Americans show continued willingness to give up some of their rights to privacy as part of efforts to combat terrorism.

Government surveillance of the internet helps to protect citizens from the dangers that an abuse of the internet can cause. The internet provides individual users with significant power due to the wide range of information contained on the network and the communication efficiency.

These attributes can be exploited for wrong purposes if the government does not police the network. Seidler (2013) confirms that the government might be forced to carry out secret activities for the benefit of its citizens. Through surveillance, the government can identify questionable activities by citizens and engage in further investigation. Such efforts might lead to the discovery and stopping of criminal elements before they carry out crime.

Under the Obama Administration, the US has continued and even expanded the electronic surveillance implemented by the Bush administration. The justification for this is that the surveillance regime is integral to protecting the US against Foreign and Homegrown terrorists. Even so, Obama (2014) admits that the prevalent internet monitoring creates a potential for abuse. Action therefore needs to be taken against government surveillance on its citizens.

According to the renowned American whistleblower, Edward Snowden, the important players in this issue include “the public, the technologist community, the U.S. courts, Congress and the Executive Branch” (Scherer, 2013, p.81). These bodies need to deliberate on the future of the country if government surveillance is allowed to go on uninhibited.

As it currently stands, Internet surveillance has given the government intrusive police power that can be used against innocent civilians. The liberties of Americans have been constricted by the deployment of the surveillance infrastructure. Action needs to be taken to address these issues and restore the privacy and civil liberties guaranteed to American citizens by the US Constitution.

Boghosian, H. (2013). The Business of Surveillance. Human Rights, 39 (3), 2-23.

Obama, B. (2014). Remarks by the President on Review of Signals Intelligence . Web.

Purkayastha, P., & Bailey, R. (2014). U.S. Control of the Internet Problems Facing the Movement to International Governance. Independent Socialist Magazine, 66 (3), 103-127.

Regan, L. (2014). Electronic Communications Surveillance. Independent Socialist Magazine, 66 (3), 32-42.

Scherer, M. (2013). Number Two Edward Snowden The Dark Prophet. Time, 182 (26), 78-89.

Seidler, N. (2013). A perspective on principles for Internet surveillance .

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16 Pros and Cons Government Surveillance of Citizens

When we look back at the top-trending stories of the last decade, there are three in particular which stand out when looking at the issue of government surveillance: the death of Trayvon Martin, the rise and fall of Google Glass, and the release of information about the surveillance program called Prism.

Even though these issues may not seem like they are connected at first, each story represents a growing movement toward, or away from, a society that features surveillance.

On one side of the debate, there are people who say that there is too much surveillance already present in our society. We have wearable cameras, mobile computers, and a complete lack of privacy thanks to the amount of video we can produce without anyone realizing they are captured in the data.

The other side of the debate suggests that a society which offers cameras and recorders everywhere will make the world a safer place. When you are on camera committing a crime, then it becomes more.of a challenge to find a successful result in our adversarial system of justice.

Do we want this kind of society? These government surveillance pros and cons go beyond the idea that such an action would provide justice for all at the cost of having zero privacy.

List of the Pros of Government Surveillance

1. It is one of three primary methods of collecting information to keep people safe. Marc Thiessen from The Washington Post argues that there are only three ways that the government can collect the data that is needed to keep everyone in the country safe. Officials can obtain the information by questioning subjects, infiltrating enemy groups, or using intelligence resources to monitor communications. Even though this effort can track the phone calls, text messages, and emails of millions of people who pose no threat to the country, the argument is that the government surveillance is necessary to detect any association to international terrorism.

2. Surveillance does not create a threat of physical harm on its own. When the government is performing surveillance over video, communication lines, and Internet resources, then no one is being physically harmed by these activities. You can install trackers on a vehicle that might invade some of your privacy, but it will not be an actual attack on your person. Because the goal of this work is to discover criminal activities, many people believe that the ends justify the means when it comes to keeping everyone safe.

3. The act of surveillance acts as a deterrent to would-be criminals. Because there is an extensive web of government surveillance in place across the country, there is a natural deterrent in place that stops criminal activity before it can start. People tend to react to safety interventions instead of responding to them, which means their effort at harming someone is stopped before it can start. When those with nefarious intent discover that they have no way to hide from law enforcement, then there are fewer incidents that will eventually come to fruition.

That won’t stop the individuals who take their communication underground, but it can pick up many of the conversations and messages that people exchange when trying to coordinate an attack.

4. It provides a real-time look that provides an accurate account of events. When we look at the case of Trayvon Martin, who was an unarmed African-American teen that was shot because of his appearance, the most important evidence was the words of the shooter about how the argument between the two began. During the trial, the statements of the eyewitnesses differed, creating uncertainty about the sequence of events. With surveillance in place, it would have been much easier to determine what happened and what level of justice was necessary in that circumstance.

5. Surveillance equipment can be installed almost anywhere. The modern equipment for government surveillance can go almost anywhere. You can find cameras installed on telephone poles, stop lights, and in the ceilings and exterior of homes and businesses around the world. There are automated license plate readers that can be installed almost anywhere to track driving patterns in the city. Drones can provide real-time surveillance as well.

Then you have the secret programs of the government that can record and analyze data automatically on a mass scale.

6. Government surveillance can occur on a global scale. Under FISA 702, the U.S. government can collect a massive quantity of detailed, sensitive, and intimate personal information about individuals from all over the world. This advantage includes anyone who has a foreign intelligence interest for the government. That means we can even eavesdrop of foreign ambassadors, gather information about commodities, and then use all of this information to gain more leverage during negotiations.

List of the Cons of Government Surveillance

1. It is impossible to catch everything that happens in society. When the government is conducting surveillance on a mass scale, then it is impossible for the monitors to pay close attention to everything that happens in society. Even when there are automated systems in place that can alert the authorities to suspicious behavior, conversation keywords, or specific subjects who could be problematic, the number of false positives in the system are always going to be greater than the real problems you’re trying to catch.

The world is full of a variety of conversations that makes monitoring all of them an imprecise effort at best. From the words with double meanings to metaphors that alarm systems unintentionally, there is a lot of data to sort through. That reduces the chances to catch something of concern.

2. Anyone can connect the dots in hindsight. When we take a look back at the various acts of violence that were captured through government surveillance, it is notable that many of the perpetrators tend to appear on watch lists because of the sheer amount of data collected. When Boston bomber Tamerlan Tsarnaev was placed on a terrorist watch list before attacking the city during the marathon, it was much easier to see the behavioral patterns and actions that led to the event after the fact than it was to predict what his actions would be.

This issue creates a conundrum for government surveillance. You can always see clearly in retrospect. That means we tend to learn more when we start to connect the dots instead of trying to prevent problems in real time.

3. Surveillance misses lead to even more data being collected on people. When there is a miss from government surveillance activities, then the reaction tends to be an ever-closer analysis of the information that was collected already. It can also lead the authorities to add even more surveillance to create additional data to sift through in the hopes that the real threats can be isolated from the false ones. This outcome means that there will be more privacy invasions over time as AI and human investigators apply a mass-scrutiny policy to their review efforts.

“There will come a time when it isn’t ‘They’re spying on me through my phone’ anymore,” said Philip K. Dick. “Eventually, it will be ‘My phone is spying on me’.”

4. Government surveillance places innocent people under investigation. Even if the data collected through government surveillance creates a reasonable suspicion of conduct for the targeted person, there may not be a guarantee that the individual is guilty. When we increase the amount of coverage that’s available in society, then we begin to restrict the rights of those who don’t deserve security interventions.

We have already seen innocent people being placed on watch lists, having their lives placed underneath the microscope of an investigation, and it occurs with ever-fewer pieces of evidence that back up the scope of what is happening. “There are no private lives,” said Dick. “This is a most important aspect of modern life. One of the biggest transformations we have seen in our society is the diminution of the sphere of the private.”

5. The government can use the information for its own benefit. The information that the government collects through surveillance can provide more data on behaviors and choices that go beyond the need for safety. This effort could help politicians discover unique data points which might predict voter behavior patterns in an election. It shows a person’s travel patterns, the structure of their social networks, and even the products they prefer to purchase at the grocery store.

When the government can use the information from surveillance to influence people to vote or buy in specific ways, then they are changing the very fabric of society. It is an authoritarian way to govern without the presence of a dictator to direct traffic. “Under observation, we act less free,” said Edward Snowden, “which means we effectively are less free.”

6. Government surveillance sweeps gather more bystanders than subjects. In an analysis of the information gathered through FISA 702, the number of non-targeted communications are 10 times greater than the data that the government actually wants to analyze from a suspect. Even if the goal is to spy on foreigners only, the huge volumes of data cannot help but to bring in information from email exchanges, photographs, social medial sharing, and conversations.

The government classifies the unwanted data as being incidental, but that doesn’t necessarily stop the information from being used in inappropriate ways. Once the data is acquired, other law enforcement agencies can search through the information without the need to obtain a warrant in some situations.

7. There is a persistent threat for insider abuse. There are already documented cases of agents in the government taking advantage of the data that surveillance programs collect information about others. It is easy to access this data to look at what is going on with a spouse, a mistress, or someone who is a personal enemy. The problem is so prevalent that there are nicknames for these searches.

The insider abuse of this data also applies in the form of attorney-client privilege. Governments are not bound to recognize this confidential nature of this relationship with the data that they collect. That means people could potentially incriminate themselves through surveillance even though they believe that there are protections in place while they prepare for their defense.

8. Individuals can be charged without any knowledge of their participation. This disadvantage comes to us courtesy of the Upstream program from the NSA. The government scans the information that flows over the internet to see if there is information about foreign intelligence targets. If you mention a political figure to a friend who lives overseas, then that could be enough to trigger a review of your conversation. Discussing their address or contact information could even lead to charges.

This issue could apply if you’re having a conversation with someone who commits a crime without your knowledge. In the United States, government surveillance efforts could collect your whole email account even if there is only one email that triggers the automated review systems.

9. There may not be any oversight over the government surveillance programs. Under section 702 in the United States, there is no judicial participation in the targeting decisions made by the government. The courts will assess the procedures to determine if they fit into the correct procedures that authorize this monitoring. There is no actual oversight on the targeting decisions that get made. That means any of the information that is collected through incidental gathering can flow to law enforcement even though it was never authorized by a judge.

10. There is an expense to consider with government surveillance. When you consider all of the technology investments, labor, and analyzing hours that go into a government surveillance program, the amount of money that gets spent each year can total several billion dollars. That money comes through taxpayer support in the name of defense, which means the population effectively pays for the data that the government could potentially use against them under the right set of circumstances.

Verdict on the Pros and Cons of Government Surveillance

There is a time and place for government surveillance where the use is authorized to keep someone safe. Whenever there is a threat to human life that is predictable and eminent, then this technology can help to save lives.

The problem with this issue is that governments tend to collect and keep the information so that it becomes useful in a variety of ways. Instead of keeping people safe, the data transitions to keeping specific people in power.

The pros and cons of government surveillance are essential to review every so often because as time passes, our priorities may change. The Patriot Act in the United States authorized many of the programs that fall into this category in 2001. It may be time to revisit that need.

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Private Signals, Opaque Models, and an AI-Surveillance World

In the 2023–24 academic year, The Center for Digital Humanities held a new speaker series focused on how Artificial Intelligence (AI), particularly Large Language Models (LLMs) like ChatGPT, is changing our world as researchers, teachers, and individuals. The Princeton LLM Forum, co-organized with the Department of Computer Science and supported by the Humanities Council, brought together leading scholars and researchers to discuss the implications that LLMs have on our understanding of language, society, culture, and theory of mind. Consistent with AI's broad applications and implications, the LLM Forum speakers represented a wide range of disciplines and backgrounds, from literature to politics to data science. Over the course of the series, the CDH hosted four guests, each paired with a Princeton faculty respondent. In October 2023, we kicked off the forum with Meredith Whittaker (President of Signal) and respondent Arvind Narayanan (Computer Science; Center for Information Technology Policy) on the topic of Society . As the academic year comes to a close, the CDH’s Lead Research Software Engineer, Rebecca Sutton Koeser, reflects on that first discussion and shares some of her impressions—and concerns—below.

Sending signals

I use the Signal encrypted messaging app every day.

I started using it a few years ago because my father, a retired network engineer, wanted to use a messaging system with encryption. We briefly used WhatsApp, until he learned that it was owned by Facebook. End-to-end encryption isn’t that good when someone you don’t trust has access to one (or both!) endpoints. I mostly use Signal to stay in touch with my parents and share pictures and stories about my children’s latest adventures; I’m slowly starting to gather other friends and colleagues as contacts. I don’t generally use it for sensitive information (except perhaps very rarely exchanging financial information with family), and I never felt like any of my communication required encryption. Honestly, at first, I was just using it to honor my father.

Meredith Whittaker and Arvind Narayanan on the implications of LLMs on society

This familiarity with Signal was my primary context going into the LLM forum conversation between Meredith Whittaker and Arvind Narayanan back in October 2023, on the topic of Large Language Models and Society . The conversation between Whittaker and Narayanan was illuminating, entertaining, wide-ranging, and thought-provoking. There were moments when you could tell just about everyone in the room was jotting down a funny or insightful comment.

Meredith Whittaker (President of Signal) gives the peace sign to the recording booth from the stage at the October 2023 LLM Forum on Society. Photo: Shelley Szwast, 2023.

Throughout the conversation, it was clear to me how much language matters and informs the way we think about technologies. To start the conversation, Whittaker gave us a brief history of how “Artificial Intelligence” has become a branding and sales pitch term, initially used to differentiate academic territory from “cybernetics.” Whittaker repeatedly pointed out power dynamics: how the hierarchies of the field and structures of computer scientists in academia working with industry are a kind of “capture,” and that data capture and data gathering always enact a power dynamic of some kind. Narayanan, co-author of the book AI Snake Oil , shared his own experience of the difficulty of working on privacy in computer science, which is structurally within the subfield of information security — the ideologies of the people reviewing his work were often quite opposed to it. Whittaker discussed AI as surveillance and stated that instead of “microtargeting” marketing, it would be more accurate to call it “surveillance advertising” (a much more disturbing term!). She noted that the people who build the technology don’t necessarily control it, and emphasized the need for explainers — people don’t understand the technology, but they are afraid to look stupid by asking questions, which is particularly concerning when it comes to government officials making decisions and writing policies related to technology.

Whittaker and Narayanan in conversation at the October 2023 LLM Forum on Society. Photo: Shelley Szwast, 2023.

During a discussion of open models and open LLMs, Whittaker pushed on the idea of “open” a bit: How open is it if it’s in an ecosystem controlled by big tech, where you’re required to use their tools and frameworks (e.g., pytorch) even to play? For her, calling these efforts open-source models is a misnomer.

Growing discomfort with privacy and content in online spaces

Whittaker's comments about her work with Signal are the ones that have stayed with me the most. She described how hard Signal works to protect user data from themselves — something that is not the default, and that goes against the grain of our current surveillance culture. I have access to server logs and analytics for our CDH web applications, so I have a sense of this kind of access, on a much smaller and less critical scale. She talked about how expensive it is to run Signal (Signal Foundation is a nonprofit organization), and how they have to be on the servers in the network in order to get the kind of response time that people expect from a messaging application. As Lauren Klein has written, “all technologies are imbricated in … unequal power” (see Klein’s 2022 essay Are Large Language Models Our Limit Case? in Startwords issue 3).

The increased visibility of big tech companies scooping up vast swaths of content from the internet to create large language and image models is changing how we think about and protect our own content. I’ve heard researchers like David Bamman (who gave a talk in February on “ The Promise and Peril of LLMs for Cultural Analytics ”) make the case that this work is truly transformative and constitutes “fair use” — maybe it’s fair in a technical sense, but it certainly feels uncomfortable. And for me, that discomfort is growing, which is probably a good thing. The recent change to Dropbox’s terms of service to allow sharing with third-party AI providers prompted a discussion among CDH staff about our Slack usage and data retention. I tend to avoid posting pictures of my children on social media, but until recently I’ve felt like Slack is a “safe” place for that content. Several of us joined a livestream of a recent talk Matt Jones gave for a CITP seminar where he talked about the history of surveillance at scale, and how old assumptions that the content of communications should be protected but not the metadata, are dangerous and outdated in today’s world. Sometime after attending this LLM forum, a Firefox browser update prompted me to try popular plugins, and I installed the NoScript security plugin ; sometimes it makes browsing the web a lot less convenient, but it also makes the online tracking much more visible. CDH faculty director Meredith Martin recently shared Associate Professor of Sociology and CDH Executive Committee Member Janet Vertesi’s Opt Out Project . I find her advice encouraging, that it’s ok to start with one system at a time. One of my lines has always been Facebook; I’ve never had an account. But I’m deeply embedded into Google systems, both for work and for personal content; maybe it’s time to start assessing and planning where else I personally can opt-out.

The stories and pictures of my children that I share with my parents and siblings through Signal messages are precious to me, and I want them preserved. However, it’s becoming increasingly clear to me that this data—along with large swathes of my work and communications online—are increasingly sensitive and worth protecting.

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N.S.A. Disclosure of U.S. Identities in Surveillance Reports Nearly Tripled in 2023

The sharp increase of so-called unmaskings, to more than 31,300 times, arose from attempts by foreign hackers to infiltrate the computer systems of critical infrastructure.

By Charlie Savage

Reporting from Washington

The number of times the National Security Agency identified Americans or U.S. entities last year in intelligence reports containing information from a high-profile warrantless surveillance program nearly tripled from 2022, the government disclosed on Tuesday.

The sharp increase in so-called unmaskings, to more than 31,300 times, arose from attempts by foreign hackers to infiltrate the computer systems of critical infrastructure — not individual people, officials said. In particular, a single intelligence report last year identified a “large number” of potential American entities a hacker sought to breach, the report said.

The report was the most recent set of surveillance-related statistics made public each spring by the Office of the Director of National Intelligence, providing a measure of transparency into how intelligence agencies use their electronic spying powers.

Such information was once kept tightly secret, but after the 2013 leaks by the former N.S.A. contractor Edward J. Snowden set off a broad debate about Americans’ privacy, the government began issuing the report in an effort to build public trust.

The Foreign Intelligence Surveillance Act of 1978, or FISA, normally requires a warrant for national-security wiretapping on American soil. A provision of that law, known as Section 702, is an exception, allowing the government to collect, without a warrant, the messages and data of foreigners abroad from U.S. companies like Google and AT&T — even when they are communicating with Americans.

The Section 702 program has elicited intense controversy since Congress enacted it in 2008 to legalize a form of a warrantless surveillance program the Bush administration secretly began after the Sept. 11 attacks. This month, Congress renewed Section 702 for two years after an intense political fight disrupted the usual partisan alignment, with supporters and skeptics of the program in both parties.

In recent years, F.B.I. officials have repeatedly conducted searches using the identifiers of Americans, like e-mail addresses, that were later found to have violated standards for such queries of the repository of intercepts — including because the searches lacked sufficient justification or were too broad. Problematic queries have included searches using the identifiers of a lawmaker , Black Lives Matter protesters and Jan. 6 Capitol riot suspects .

The bill to extend the program imposed a number of limits, especially on the F.B.I.’s ability to use it. Those changes were too recent, however, to be reflected in the report. Still, many of the new restrictions codified into law changes the F.B.I. had put into place in 2021 .

In March 2023, the Biden administration had trumpeted how the number of American identifiers the F.B.I. had used as search terms had plunged after the bureau made changes, and the new report showed that trend continuing — even as the total number of Americans or American entities who were identified in intelligence reports soared.

Specifically, the government roughly estimated that the F.B.I. had used more than 2.9 million American identifiers as search terms in the Section 702 database between December 2000 and November 2021. That number fell to roughly 119,383 in the yearly span that ended in November 2022, and fell again to roughly 57,094 in the year that ended last November. (Because of a complexity in F.B.I. systems, those estimates are an overcount of the actual numbers.)

The F.B.I. opened no ordinary criminal investigations into Americans based on information gathered using Section 702 last year, the report said, but it disclosed how often that F.B.I. officials had gained access to the results of queries for information about Americans that officials had conducted solely for the purpose of scrutinizing potential ordinary crime, with no connection to a national security investigation.

In the 12 months that ended in November 2022, for example, F.B.I. officials ended up looking at information 43 times that came up in response to a search for information about Americans while scrutinizing ordinary crimes. That was an upward revision by 27 from last year’s report because of discovering additional examples in an audit. They did so 21 times in the year that ended last November.

Most — 29 in 2022 and 17 last year — did not comply with internal limits because they were searches that essentially amounted to fishing expeditions by agents who lacked a sufficient reason to believe beforehand that they might find relevant evidence.

Privacy advocates have cited F.B.I. errors in searching for information about Americans that the government swept in without a warrant to argue that officials should be required to obtain court orders for such queries. National security officials strongly oppose such a proposal, arguing that it would gut the program’s effectiveness. A proposal to add such a limit to the Section 702 extension bill failed in a tie vote in the House this month .

Charlie Savage writes about national security and legal policy. More about Charlie Savage

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24./25.10: Call for Papers Digital Democracy Workshop 2024

6. May 2024

The Digital Democracy Workshop is co-organized by the Democracy Community of the Digital Society Initiative and the Digital Democracy Lab of the University of Zurich. We invite paper submissions on the relationship between digital technology and democracy, broadly understood. The workshop aims to facilitate exchange between scholars from different disciplines working on these issues.

We invite paper submissions on the relationship between digital technology and democracy, broadly understood. We are particularly interested in topics such as political communication and public opinion, e-government and public administration, AI and governance, civic tech and political participation, the regulation of tech platforms, and state repression and surveillance, among others. We welcome submissions using different methodological approaches to study these topics.

This workshop is co-organized by the Democracy Community of the Digital Society Initiative and the Digital Democracy Lab (https://digdemlab.io/) at the University of Zurich. It aims to facilitate exchange among scholars from different substantive fields working on these topics. We particularly encourage early-career researchers and those belonging to groups traditionally underrepresented in the field to apply.

Workshop attendance is free and is open to both paper presenters and non-presenters, but registration is required and subject to seat availability. The workshop will take place in Zurich and all presenters are expected to attend in person.

The deadline to submit paper abstracts for the workshop is 2 June 2024. Please find the Call for Papers at this link: CfP-Digital-Democracy-Workshop-2024.  Acceptance notifications will be sent by 15 July 2024.

Registration for non-paper presenters will be open from 1 September to 14 October 2024. Please note that co-authors have to register separately as non-presenters if they wish to attend the workshop. We provide a limited number of travel grants for junior scholars; more information will be provided upon acceptance.

Organizing committee: Alexandre Bovet, Dina Della Casa, Fabrizio Gilardi, Emma Hoes, Matthias Leese, Maël Kubli, Karsten Donnay, Jennifer Victoria Scurrell, Florian Schaffner, Iuliia Spycher, Philipp Trein, Daan van der Weijden. We can be reached at [email protected].

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Israel is banning Al Jazeera, America is banning TikTok. We know why

What the two laws have in common is desire to silence Israel-Gaza war critics

T he White House rightly said it was “concerning” when Israel’s parliament laid the groundwork to shut down Al Jazeera within its borders in April. On Sunday, Israel made its move. The Foreign Press Association called it a “dark day for democracy”.

If the White House remains concerned, it has a strange way of showing it. Joe Biden and his administration have supported and encouraged recent censorial laws and court cases that virtually ensure that “dark days” are ahead at home as well.

The best-known example is the bill Biden signed into law last month to ban or force a sale of TikTok. Like Israel’s Al Jazeera ban, that law relies on unsubstantiated assertions of national security concerns, ignoring Justice Hugo Black’s prescient warning in the Pentagon papers case that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the first amendment”.

Another thing the two laws have in common is that it’s an open secret that those concerns are pretexts for silencing the growing backlash against the Israel-Gaza war. Senator Mitt Romney essentially acknowledged as much in a recent conversation with Antony Blinken, the secretary of state. He wasn’t the first to say the quiet part out loud.

The TikTok law, like the Al Jazeera one, isn’t limited to its initial target. It opens the door for future bans of other platforms – including foreign-controlled online news outlets – that the president deems a national security threat. But unlike the Israeli law, which requires the prime minister to obtain approval from the security cabinet or the government, the US law permits essentially unilateral executive action. It would be naive to think TikTok will be the end of it.

It doesn’t stop there. Biden also signed into law the Reforming Intelligence and Securing America Act (Risaa). That legislation allows the government to conscript any “service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications” to help it surveil foreign targets.

The administration ignored the consensus of civil liberties advocates as well as warnings from lawmakers like Senator Ron Wyden, who cautioned that Risaa could allow the government to order “an employee to insert a USB thumb drive into a server at an office they clean or guard at night”.

And that office could be a newsroom . Risaa is, after all, an amendment of the Foreign Intelligence Surveillance Act, which had been abused to spy on journalists before Congress expanded it. It’s a safe bet foreign sources will hesitate to speak to US journalists if they think the newsroom may be bugged.

Another bill recently passed by the House of Representatives would give the secretary of the treasury unchecked power to revoke the tax exempt status of any non-profit – including non-profit news outlets – that the secretary deems a “terrorist-supporting organization”. Funding terror is already illegal, but the bill would dispense with the process needed to officially designate groups as terrorist organizations or prosecute them for material support of terrorism.

The legislation comes at a time when federal lawmakers and state attorneys general have insinuated that major news outlets like CNN, the Associated Press, the New York Times and Reuters support terrorism, for example by buying pictures from Palestinian freelancers or by merely being critical of Israel. That’s not to mention the pandering politicians claiming – based on similarly flimsy evidence – that student groups are terrorist supporters.

Some commentators have even called for the bill to be expanded to delist non-profits that meet the controversial International Holocaust Remembrance Alliance definition of antisemitism . The definition, also recently adopted by the House, is widely criticized for conflating disparagement of Israel with antisemitism – a tactic also employed by proponents of the Al Jazeera ban.

That would give the US government far greater power to silence news outlets – at least increasingly common non-profit ones – than Benjamin Netanyahu could dream of. The administration has not yet said whether it will support the non-profit bill, but its embrace of other censorial power-grabs is not a good sign.

Nor are its anti-press prosecutions. The Florida journalist Tim Burke faces federal charges under the vague and frequently abused Computer Fraud and Abuse Act for “ scouring ” the internet to find important news that corporations wanted kept secret. Press freedom advocates worry that the charges, and the lack of transparency around them, could chill online newsgathering.

And then there’s the prosecution of the WikiLeaks founder Julian Assange . The administration frames it as a hacking case , despite that 17 of the 18 charges have nothing to do with hacking, and everything to do with routine newsgathering methods that investigative journalists employ every day. The Biden administration hasn’t denied that a precedent allowing imprisonment of publishers of government secrets could be abused – it’s only offered assurances that it won’t do so (and, once again, cites nebulous claims of “ national security ” harms).

Biden and many other Democrats constantly warn that Donald Trump would behave like an authoritarian in a potential second term. Yet they insist on continuing to hand him new powers to abuse, particularly against his favorite scapegoat: the press.

Anyone who doubts that Trump or future presidents will abuse those powers should view the weekend’s events in Israel as a cautionary tale.

Seth Stern is the director of advocacy at the Freedom of the Press Foundation and a first amendment lawyer

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