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Is Technology Outstripping the Ability of Law to Protect Us?

Twenty-first century technology is being governed largely by twentieth century law.

Doug Mataconis


June 10, 2013 - 8:40 am
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Recent revelations about the National Security Agency amassing massive amounts of data ranging from cell phone records to Internet activity to credit card transactions have, quite rightfully, led many Americans to become concerned about the extent to which our civil liberties are being eroded by government monitoring in the name of “public safety.”

Of course, the government has been engaged in data collection for quite some time. As James Bamford first detailed in his classic 1983 book The Puzzle Palace, the NSA has been engaged in the practice of collecting data for decades now. Theoretically, the agency’s mission was, and indeed still is, supposed to be limited to collecting data on communications between people in the United States and people in foreign nations, especially nations that are potential adversaries of the United States. In reality — even 30 years ago when we were all still communicating via hard-wired telephones and the Internet was still not much more than a research project at DARPA that had begun connecting American universities together — the signals intelligence that the NSA was collecting inevitably ended up including purely domestic communications.

Now we live in a very different technological era. For many people, cell phones are the primary, if not exclusive, means of communication; the Internet has exploded into something that can now be accessed by a device that can fit in the palm of your hand; and we are slowly moving into an era when it will be commonplace for people to store personal data in “the cloud,” where Fourth Amendment protections don’t necessarily apply. To the extent that they have been able to deal with the issues that this new technology presents, courts have been forced to apply precedent based on twentieth, or nineteenth, century technology to the twenty-first century. The result, quite often, has been a decided bias in favor of the state and against individual liberty.

At the same time, Congress has generally failed in its task of honestly debating new laws that apply to these technologies, and has acceded to the requests of law enforcement for greater powers to gather information. The classic example of this is the Patriot Act, which passed Congress with little actual debate by overwhelming margins in both the House and the Senate –a mere six weeks after the September 11 attacks. Since then, the law has been renewed with largely inconsequential revisions several times with little notice by the public.

Beyond the Patriot Act and the new revelations about the NSA, though, it seems rather clear that we’ve entered an era where the ability of the state to use technology to gather massive amounts of information about anyone they wish has expanded significantly. For example, since the September 11 attacks most major American cities have seen a massive increase in the number of surveillance cameras operating in public places. If you walk around Washington, D.C., or downtown Manhattan, it’s virtually impossible to miss the massive arrays of both public and private cameras that are recording every move you make. To a large degree, these cameras have been accepted unquestioningly and rarely challenged in court.

In addition to public surveillance cameras, courts have been forced to deal with the idea of using global positioning satellites as a tool of law enforcement. For the past several years, for example, courts have struggled with the question of whether the police can surreptitiously place a GPS tracking device on someone’s car without first having to obtain a warrant based on probable cause. Last year, in a rather confusing ruling, the Supreme Court ruled that police acted improperly when they placed such a device on a suspect’s car and tracked him for nearly a month. The Court did not go as far as the D.C. Circuit Court of Appeals in its ruling on the issue, nor did they follow the logic of 9th Circuit Court Judge Alex Kozinski in his ruling on a very similar case. Most importantly, the Court did not rule that every use of such a device requires police to obtain a warrant.

The issue is still very open-ended, police can still theoretically make use of GPS tracking data without having to obtain permission from a judge, and every one of the increasing number of devices that have GPS capability is potentially a tool for law enforcement to track the movements of citizens.

All of this leaves us with a rather important question: are we at the point where technology is outstripping the ability of current laws, and the Constitution, to protect the civil liberties and the privacy of American citizens?

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All Comments   (21)
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The "law" can only protect us when it rules (The Rule of Law). When Obama and Holder can decide which laws to enforce and which laws to ignore, men rule, and the Rule of Law is destroyed.

That's why no law can protect us. It does not matter what laws Congress passes, only those laws Obama and Holder want to enforce matter. Of course, for now, Obama is careful to CYA by sneaking provisions through Congress, or issuing Executive orders. The Supreme Court is no help, since, with the NSA's help, Obama can always get to enough justices to make sure his view prevails.
1 year ago
1 year ago Link To Comment
The gov't hasn't done well in preventing Chinese hackers from stealing the equivalent of $300B in R&D from defense systems. If the gov't is collecting everything on everyone as Rep Waters says (shaky source) what is their assurance to us that they can even guarantee the security of data they store on innocent citizens? Talk about identity records, health records.....
1 year ago
1 year ago Link To Comment
It is not a matter of the law not keeping up with technology but more a matter of government pretending that somehow it fundamentally changes things. What is the difference between the NSA making recordings of telephone calls but not listening to them and making copies of email and not reading them or opening and scanning your mail, without any indication that you have violated any law. For some reason government has been allowed to play games and pretend that private communications by mail and phone are somehow fundamentally different than email. The Fourth amendment seems fairly simple unless you are looking for reasons to ignore it The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, I am hard pressed to how private communication between individuals via email is any different than a phone call, the telephone company like internet servers are private companies. Or how about can the government look at what gets sent via Fedx or Ups since they are private companies or are we back to silly word games about paper, and if that’s the case are stone tablets then fair game.
1 year ago
1 year ago Link To Comment
Do we really need their kind of protection?
1 year ago
1 year ago Link To Comment
Here's the thing. Just because an automatic rifle can now kill 50 people in 30 seconds whereas before a musket could only kill one every 3 minutes does't mean that we need to rewrite our murder laws. Whether you use new tech to kill someone or old tech, doesn't change that murder has always been against the law.

Technology marches onward but the misuse of technology is and always has been a known quantity that can be codified into law. I don't care if an eavesdropping tech can only monitor one person or 1 million. The law should deal with consequences for MISUSING collected data. Data collection is only a tool. How that tool is used is what we need to care about.

If it is against the law to use collected data to punish political enemies then we shouldn't have to worry about the data collection process per se. We should instead concentrate on heavily punishing anyone who uses private information for nefarious purposes just like we would punish a politician for siccing the FBI on someone they didn't like.

An IRS agent and his superiors should go to jail for 20 years in the federal pen if they have been found to be using data to persecute political opponents. But instead, people want to abolish the IRS in order to prevent such behavior. I certainly wouldn't mind abolishing the IRS for other reasons but that won't prevent other government thugs from punishing the president's enemies. The misuse of governmental power is the problem.

Instead, I want to see profound and punitive punishment of anyone who misuses governmental power. Feel free, Mr. President, to collect info about me but if any of that info gets to my business competition, political opponents, the press, or is used by the bureaucracy to punish me in any way whatsoever, then whomever leaked that info should never see the light of day until they are old and impoverished (because I have been given everything they own.) And if a president can't keep his bureaucracy in check, he should be impeached and removed from office.
1 year ago
1 year ago Link To Comment
MAIN CORE .... did you all know about this ?

The Bigger Question is why was the Society Kept in the dark instead of being allowed to be informed of this and be a working society involved in the effort to secure the homeland , It could be said that if the general public was Involved in this effort then security breaches would be better prevented EVEN 911 could have been Prevented because the see something say something policy would have been in the societies best Interest and the idea that a Public awareness policy approach to security rallies a Society for the cause of LIBERTY for ALL . So Why didn’t we do security this way instead of all this in the Dark secrecy stuff ??

1 year ago
1 year ago Link To Comment
How would a law protect us? Seems that there is a lack of preconditions of control to monitor compliance which is the problem.

What you should be your enemies getting into your writings and posting them for all to read. Private parties can have a lot of fun with us, will some law make a diff, if it can't stop hackers?

Finally we are responsible for our own security. There are tools and what is just good general personal mental hygiene. In the business it is tradecraft, and we can get a lot of security by normal caution, not to mention readily available products.

I note that all our leakers never give up the names and addresses of the IRS creeps in Cincinnati.

1 year ago
1 year ago Link To Comment
First, I'm not sure it's the job of "Law" to protect us, it's always seemed to me it's a necessary evil to protect society, as opposed to the individual. Second, technology isn't what caused the erosion of liberty, it is a judicial system that uses precedence and interpretation rather than relying solely on the Constitution as it was written.

"Precedence" is a guaranteed slippery slope, now a robed tyrant on the supreme court even thinks precedence from other countries should be used to dilute, subvert, and eventually destroy the Constitution.

If you want to get liberty back what's needed isn't helping "Law" protect us, what's needed is repeal of 9/10th of the "laws" on the books and elimination of precedence in the judicial system.
1 year ago
1 year ago Link To Comment
Like all reactionary legislation passed while passions run high, the Patriot Act sucks bilge water. I am as Conservative as they come, and support the military AND taking the fight to the enemy. I draw the line, however, when it comes to the erosion of basic liberty.
1 year ago
1 year ago Link To Comment
Good article, thanks.
Public surveillance is a specific and very complex issue, not just a technoweenie/propellerhead matter as some of the STEM guys think. Maybe the starting point is the UK, where the gov't admitted five years ago that the average Briton -- that would include archaeologists and colorful mud-people painted blue -- was caught by security cameras a staggering 200 times a day. Has it got better since?

The larger issue: Per the Director of National Intelligence, as of last year, 1.4 million Americans now have top-secret clearance, half of 'em employees of private businesses. That's a management problem.

No, it's not the technology but rather a problem with the folks in charge within the bureaucracies and, above all, the under-performers in congress and in the chain of command. Also, our elites are, collectively and with few exceptions, too old, too slow, and too late. Often, they are smug and corrupt time-servers, too. Think Pelosi x 100,000. (In passing, Hillary sent her first Tweet today -- yeah, team!, next she'll be baking cookies).

As for the latest exploding hemorrhoid involving the callow Mr Snowden, it looks like roads lead in the direction of the Carlyle Group, which controls 2/3 of the issued shares of Booz Hamilton; very few have the knowledge, resources or wits to get to the truth there, none of them journalists. Meanwhile, we're asked to rely on the cardboard guy in the WH, 'reaching out' via his handlers to Dianne Feinstein, Susan Rice and that unspeakable UN chick? God help us, what a sight, they're all running around naked!

It's time for the asylum to tumble. You simply can't sustain a healthy country with the 'gov't' we have. Sanest approach is to lock, load, secure the perimeter and figure out which neighbors and family members to trust; then shoot as needed. Many if not most in our armed forces, security services and law enforcement can be relied on to do the right thing.

Where does that leave us? Deja vu -- again.
First they came for the jews -- again.
If not me, who? If not now, when' -- again.
Whether you like it or not -- I for one certainly don't -- we've reached the point where scumbag Julian Assange is correct: the rule of law has collapsed.

In the idiom of this site, teeth clenched over the pipe stem, Quis custodiet ipsos custodes? Well, not a nation of dumbed-down couch potatoes, that's for sure (hmm...Cicero from in Catilinam? or possibly Sallust?).
Maybe, just maybe, we'll do better next time. The starting point should be a new Declaration of Independence, incorporating the old, just updated in ways that the average citizen can understand.
If he can't be bothered (quite likely), let him fend for himself. You are not your brother's keeper.
1 year ago
1 year ago Link To Comment
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