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Anglo-American Privacy and Surveillance Laura K Journal of Criminal Law and Criminology Volume 96 Article 8 Issue 3 Spring Spring 2006 Anglo-American Privacy and Surveillance Laura K. Donohue Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Laura K. Donohue, Anglo-American Privacy and Surveillance, 96 J. Crim. L. & Criminology 1059 (2005-2006) This Criminal Law is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. 0091-4169/06/9603-1059 THE JOURNALOF CRIMINAL LAW & CRIMINOLOGY Vol. 96, No. 3 Copyright 0 2006 by Northwestern University, School of Law Printed in US.A. CRIMINAL LAW ANGLO-AMERICAN PRIVACY AND SURVEILLANCE LAURA K. DONOHUE* TABLE OF CONTENTS IN TROD UCTION ........................................................................................ 106 1 I. SURVEILLANCE AND THE LAW INTHE UNITED STATES ....................... 1064 A. REASONABLE EXPECTATION OF PRIVACY ............................ 1065 B. NATIONAL SECURITY AND SURVEILLANCE .......................... 1072 1. The R ed Scare............................................................................. 1073 2. Title III ........................................................................................ 10 7 7 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. The Church Com m ittee ............................................................... 1090 5. The ForeignIntelligence Surveillance Act ................................. 1094 C. THE INFORMATION AGE .............................................................. 1098 1. 1994 Communications Assistancefor Law Enforcement Act ..... 1099 2. 2001 USA PATRIO TAct ............................................................. 1101 a. FISA A lterations ......................................................... 1103 b. Delayed Notice Search Warrants ................................ 1107 Fellow, Center for 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 LAURA K DONOHUE [Vol. 96 c. National Security Letters ............................................. 1108 D. WEAKENING OF THE ATTORNEY GENERAL GUIDELINES.. 1118 E. SURVEILLANCE OPERATIONS .................................................... 1121 1. CounterintelligenceField Activity .............................................. 1121 2. Echelon ....................................................................................... 1 12 7 3. Carnivore/DCS1000 .................................................................. 1129 4. Magic Lantern ............................................................................ 1131 5. Terrorism Information and Prevention System (TIPS) ............... 1132 6. Watch L ists ................................................................................. 1 13 6 F. DATA MININ G ................................................................................. 1139 1. Advances in Technology and the Commodification of Information ..................................................................................... 1140 2. Data Mining Operations............................................................. 1144 II. SURVEILLANCE AND THE LAW IN THE UNITED KINGDOM ................. 1152 A. THE EVOLUTION OF INFORMATION-GATHERING AUTHORITY ................................................................................. 1156 1. PropertyInterference ................................................................. 1156 2. Interception of Communications................................................. 1159 a. Malone v. United Kingdom and its aftermath .............. 1164 b. Halford v. United Kingdom and the Regulation of Investigatory Powers Act 2000 ................................. 1166 c. Effectiveness of Safeguards ........................................ 1168 3. Covert Surveillance: Intrusive, Directed, Covert Human Intelligence Sources........................................................................ 1173 a. Khan v. United Kingdom ............................................. 1174 b. 2000 Regulation of Investigatory Powers Act ............ 1175 4. Encrypted Data........................................................................... 1178 B. POST-9/1 1: THE 2001 ANTI-TERRORISM, CRIME AND SECURITY ACT ............................................................................ 1180 C. ANONYMITY AND SURVEILLANCE IN PUBLIC SPACE: C C T V ............................................................................................. 1184 1. Data ProtectionAct 1998 ........................................................... 1186 2. European Courts ........................................................................ 1187 3. CCTV in the United States .......................................................... 1188 III. POLICY CONSIDERATIONS ................................................................. 1190 A . R ISK S ................................................................................................ 1 19 0 1. S ubstantive .................................................................................. 1 19 1 2. Politica l ...................................................................................... 1 19 3 3 . L ega l ........................................................................................... 1 19 4 4. Socia l .......................................................................................... 1 19 5 2006] PRIVACY AND SURVEILLANCE 1061 5. Econom ic ....................................................................................1 19 9 B . O PT IO N S ..........................................................................................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." 1 Four years and two months later, news of the program became public. Attorney General Alberto Gonzales defended the Commander-in-Chief's power to ignore warrants otherwise required under the Foreign Intelligence Surveillance Act or Title III of the Omnibus Crime Control and Safe Streets Act. Congress itself had authorized the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided" the 9/11 attacks.3 For Gonzales, this meant that the President was acting "at the zenith of his powers" under the tripartite framework set forth by Justice Jackson in Youngstown v. Sawyer.4 This was not the first time Article II claims backed surveillance programs designed to protect the United States from attack. In the midst of the Cold War, the NSA ran Operations SHAMROCK and MINARET. The Federal Bureau of Investigation ("FBI") orchestrated COINTELPRO and amassed over 500,000 dossiers on American citizens. The Central Intelligence Agency ("CIA") oversaw Operation CHAOS and built a database that tracked 300,000 people. Routine counterintelligence operations disrupted everything from women's liberation to the civil rights movement. 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 Comp. Pres. Doc. 1881 (Dec. 17, 2005), available at http://www.whitehouse.gov/news/releases/2005/12/20051217.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. 90-35 1, tit. 3, 82 Stat. 212 (codified at 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 LAURA 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 committees "fully and currently informed" of surveillance programs underway, including any "significant anticipated
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