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Anglo-American Privacy and Surveillance Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2006 Anglo-American Privacy and Surveillance Laura K. Donohue Georgetown University Law Center, [email protected] Georgetown Public Law and Legal Theory Research Paper No. 12-030 © 2006 by Northwestern University School of Law This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/790 http://ssrn.com/abstract=2020411 96 J. of Crim. L. & Criminology 1059-1208 (2006) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Comparative and Foreign Law Commons, Military, War, and Peace Commons, and the National Security Law Commons 0091-4169/06/9603-1059 THE JOURNAL OF CRIMINAL LAw &CRIMINOLOGY Vol. 96. No. 3 Copyright 0 2006 by Northwestern University. School of Law Printed in U.S.A. CRIMINAL LAW ANGLO-AMERICAN PRIVACY AND SURVEILLANCE LAURA K. DONOHUE· TABLE OF CONTENTS INTRODUCTION ................ ....... ................ ..................... .......................... 1061 . .. I. SURVEILLANCE AND THE LAW IN THE UNITED STATES .......... ...... 1064 A. REASONABLE EXPECTATION OF PRIVACY ............................ 1 065 B. NATIONAL SECURITY AND SURVEILLANCE .......................... 1072 1. TheRed Scare ......... .. ...... ...... ............ ........ .... .. _ . ...................... 1073 2. Title III. ........... ....... ............... ......... ... .... ... ............. .................. 1077 3. Executive Excess.. ..... .... .. .. ..... ........... ...... .... _ .. _ ........ .... ............. 1080 a. NSA: Operation SHAMROCK and MINARET ......... 1080 b. FBI: COINTELPRO and the Security Index!ADEX .. 1082 c. CIA: Operation CHAOS ............................................. 1087 d. DOD: Operation CONUS ........................................... 1088 4. TheChurch Committee .. .. ....... .................. .... .. ... ...... .................. 1090 5. The Foreign Intelligence SurveillanceAct . .. ........ ... ..... ............ 1094 C. THE INFORMATION AGE ....... ... ......................... _ ........................ 1098 1. 1994 Communications Assistance for Law Enforcement Act ..... 1099 2.2001 USA PATRIOT Act ......... ........... ..... .............. _ . .................. 1101 a. FISA Alterations ......................................................... 1103 b. Delayed Notice Search Warrants ................................ 1107 • Fellow, Center fo r International Security and Cooperation, Stanford University. Special thanks to Paul Lomio, Sonia Moss, and Erika Wayne at the Robert Crown Law Library, for help in acquiring the materials used in this article. I am indebted to Barbara Babcock and Robert Weisberg for suggestions on the American constitutional discussion and to Clive Walker for comments on British surveillance law. This piece is part of a longer study of counterterrorist law in the United Kingdom and United States that will be published this coming year by Cambridge University Press. 1059 1060 LA URA K. DONOHUE [Vol. 96 c. National Security Letters ............................................. 1108 D. WEAKENING OF THE ATTORNEY GENERAL GUIDELINES.. 1118 E. SURVEILLANCE OPERATIONS .................................................... 1 121 1. Counterintelligence Field Activity... ............................. .... .......... 1121 2. Echelon ........ ..... .......... ............ ................................ ....... ............ 1127 3. Carnivore/DCS1000 ........................... ......... ..... ......................... 1129 4. Magic Lantern ............... ............................ ............. .................... 1131 5. Terrorism In/ormation and Prevention System (TIPS) ...... ......... 1 132 6. Watch Lists .. .............. ......... ................. ...................................... 1136 F. DATA MINING ................................................................................. 1 139 1. Advances in Technology and the Commodification 0/ In/ormation .................................................... ............ ..................... 1140 2. Data Mining Operations............................ ................................. 1144 II. SURVEILLANCE AND THE LAW IN THE UNITED KINGDOM ...... ... ... 1 152 A. THE EVOLUTION OF INFORMATION-GATHERING AUTHORITY ................................................................................. 1156 1. PropertyInterference .... ............... ........ ......................... .... ......... 1156 2. Interception o/ Communications...... ........................................... 1159 a. Ma lone v. Un ited Kingdom and its aftermath.... .......... 1164 h. Halford v. Un ited Kingdom and the Regulation of Investigatory Powers Act 2000 ................................. 1166 c. Effectiveness of Safeguards ...... ...... ... ... ..... ... ..... 1168 3. Covert Surveillance: Intrusive, Directed, Covert Human Intelligence Sources ......... .......... .... ............................ ..................... 1 173 a. Khan v. Un ited Kingdom ...... ........... ... ...... .............. 1174 h. 2000 Regulation ofInvestigatory Powers Act ....... 1175 4. Encrypted Data.... ........... ....................... ............................. ..... .. 1178 B. POST-9fII: THE 2001 ANTI-TERRORISM, CRIME AND SECURITY ACT ............................................................................ 1180 C. ANONYMITY AND SURVEILLANCE IN PUBLIC SPACE: CCTV ............................................................................................. 1184 1. Data Protection Act 1998 ................. ................................ .......... 1 186 2. European Courts ........................ ........ .................................. ...... 1187 3. CCTV in the United States .......................................................... 1188 III. POLICY CONSIDERATIONS. ... ... ...................... ..... ... .......... .... .... 1 190 A. RISKS ................................................................................................ 1190 1. Substantive...... ....... .............................. ............ ............ ............... 1191 2. Political .......... .............................. ........ ...................................... 1193 3. Legal ................. ............. ............. ....... ................ ......................... 1194 4. Social .............................. .......................... .................................. 1 195 2006] PRIVA CY AND SURVEILLANCE 1061 5. Economic .............. .............................. ................. ....................... 1199 B. OPTIONS ................ .... ..... .... ........... .... ................. ... .... ... .......... ... 1200 CONCLUDING REMARKS . .... ..... ...... .... ..... ... .. .... .... ... ........... .. ... 1206 INTRODUCTION In October 2001, President George W. Bush authorized the National Security Agency ("NSA") "to intercept the international communications of people with known links to al Qaida and related terrorist organizations."l Four years and two months later, news of the program became public. Attorney General Alberto Gonzales defended the Commander-in-Chiefs power to ignore warrants otherwise required under the Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets Act.2 Congress itself had authorized the President to "use all necessary and appropriate fo rce against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9111 attacks.3 For Gonzales, this meant that the President was acting "at the zenith of his powers" under the tripartite framework set fo rth by Justice Jackson in 4 Yo ungstown v. Sawyer. This was not the first time Article II claims backed surveillance programs designed to protect the United States from attack. In the midst of the Cold War, the NSA ran Operations SHAMROCK and MINARET. The Federal Bureau of Investigation ("FBI") orchestrated COINTELPRO and amassed over 500,000 dossiers on American citizens. The Central Intelligence Agency ("CIA") oversaw Operation CHAOS and built a database that tracked 300,000 people. Routine counterintelligence operations disrupted everything from women's liberation to the civil rights movement. However, in 1978, Congress introduced the Foreign Intelligence Surveillance Act ("FISA") precisely to prevent unchecked executive surveillance of American citizens. And congressional interest in ensuring 1 President's Radio Address, 41 Weekly Compo Pres. Doc. 1881 (Dec. 17, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/2005 1217.html. 2 Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511, § 102, 92 Stat. 1786 (1978) (codified as amended at 50 U.S.C. §§ 1801-11 (2000)); Omnibus Crime Control and Safe Streets Act, Pub. L. No. 90-351, tit. 3, 82 Stat. 212 (codifiedat 18 U.S.C. §§ 2510-20). 3 Authorization for Use of Military Force, Pub. L. No. 107-40, §2(a), 115 Stat. 224, 224 (2001) (reported as a note to 50 U.S.C. § 1541). 4 U.S. DEP'T OF JUSTICE, LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT 2 (2006) (discussing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring)). 1062 LA URA K. DONOHUE [Vol. 96 oversight did not end there: in 1991 Congress amended the 1947 National Security Act to require the President to keep the congressional intelligence
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