Constructing a Theoretical Model
for the Evolution of Law Relating
to Telecommunication Privacy
Vis-à-Vis Law Enforcement
Surveillance In America
A dissertation proposal
donna Bair-Mundy
Structure of the presentation
Research interest
Impetus for study—Patriot Act
Interception timeline ►Problem statement
Research proposal—Methodology
Theoretical foundation
Three main areas of interest
Telecommunication
privacy for
individuals vis-à-vis
federal government
Access by private
citizens to
information
produced by and
about federal govt.
Information
access
Law
formulation
Communic.
privacy
National
security
Physical
security
Law as policy
Development of law as a
reflection of the process by
which our society determines
the boundary between public
and private
Constructing a theoretical
model for this process
A major impetus…
Viet Dinh
Asst. Attorney General
H.R. 2975
10/12/2001
S. 1510
10/11/2001
H.R. 3004
Financial AntiTerrorism Act
USA PATRIOT Act
H.R. 3162
Public Law No. 107-56
Signed Oct. 26, 2001 by Pres. George W. Bush
The USA PATRIOT Act
H.R. 3162
The Acronym
Uniting and Strengthening
America by Providing
Appropriate Tools Required to
Intercept and Obstruct
Terrorism
The USA PATRIOT Act
H.R. 3162
The Purpose
To deter and punish terrorist
acts in the United States and
around the world, to enhance
law enforcement investigatory
tools, and for other purposes.
The USA PATRIOT Act
The Language
SEC. 218. FOREIGN INTELLIGENCE
INFORMATION.
Sections 104(a)(7)(B) and section
303(a)(7)(B) (50 U.S.C. 1804(a)(7)(B) and
1823(a)(7)(B)) of the Foreign Intelligence
Surveillance Act of 1978 are each
amended by striking `the purpose' and
inserting `a significant purpose'.
The U.S. Code
Sections 104(a)(7)(B) and section 303(a)(7)(B) (50
U.S.C. 1804(a)(7)(B) and 1823(a)(7)(B)) of the Foreign
Intelligence Surveillance Act of 1978 are each
amended by striking `the purpose' and inserting `a
significant purpose'.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1804.
Applications for court orders
(7) a certification …
(B) that a
the
significant
purpose of
purpose
the surveillance
of the
is to
obtain foreign
surveillance
is intelligence
to obtain foreign
information;
intelligence
information;
Federal Wiretapping Act
1968
The Omnibus Crime Control
and Safe Streets Act of 1968
(“Federal Wiretapping Act”)
U.S. Code
18 USC Section 2510 et seq.
Federal Rules of Criminal Procedure
Rule 41 Search and Seizure
FISA
1978
Foreign Intelligence
Surveillance Act
U.S. Code
50 USC Sections 1801-1863
Investigative powers in US
Code
1968
1978
Federal
Wiretapping
Act
Foreign
Intelligence
Surveillance
Act
The USA PATRIOT Act
The Complaints—Freedom of Speech
Section 215—Amending FISA 501(d)
No person shall disclose to any other
person (other than those persons
necessary to produce the tangible things
under this section) that the Federal
Bureau of Investigation has sought or
obtained tangible things under this
section.
The USA PATRIOT Act
The Complaints—Other Civil Liberties
Freedom of association
Right to due process
Freedom to read
Justice Louis Brandeis
“Experience should teach us to be
most on our guard to protect liberty
when the Government's purposes are
beneficent. Men born to freedom are
naturally alert to repel invasion of their
liberty by evil-minded rulers. The
greatest dangers to liberty lurk in
insidious encroachment by men of
zeal, well-meaning but without
understanding.”
Olmstead v. United States (dissent)
Identifying the Problem: the
Communication interception timeline
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
W
1937/1938
Nardone
D
1942
Goldman
1952 R
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Communication interception
timeline
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
W
1937/1938
Nardone
1934
Radio Comm.
Act
D
1942
Goldman
R
1952
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Federal Communications Act
1934
Section 605
No person not being authorized by
the sender shall intercept any radio
communication and divulge or
publish the existence, contents,
substance, purport, effect, or
meaning of such intercepted
communication to any person.
Nardone
“…the plain words of § 605 forbid anyone,
unless authorized by the sender, to
intercept a telephone message, and direct
in equally clear language that “no person”
shall divulge or publish the message or its
substance to “any person.” To recite the
contents of the message in testimony
before a court is to divulge the message.
The conclusion that the act forbids such
testimony seems to us unshaken by the
government’s arguments.” Justice Roberts
Communication interception
timeline
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
W
1937/1938
Nardone
1934
Radio Comm.
Act
D
1942
Goldman
R
1952
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Problem statement:
Looking at the continuing saga of
legislation and case laws dealing with
telecommunication privacy, from
Olmstead through Katz, from the
Wiretapping Act and FISA to the Patriot
Act, how can we understand the
process by which society, through its
laws, defines the boundary between
inviolate personal space and legitimate
law enforcement surveillance activities?
Relevant situations for different
research strategies
Strategy
Form of
research
question
Requires
control over
behavioral
events?
Focuses on
contemporary
events?
Experiment
How, why
yes
yes
Survey
Who, what,
where, how
many
yes
yes
History
How, why
no
no
Case study
How, why
no
yes
Yin, Robert K. 1994. Case study research: design and methods. Thousand
Oaks: Sage Publications.
Two parts of the dissertation
Develop
a
model
Case study:
USA
Patriot Act
Sources – Model development
Legislation
Law
review
articles
U.S.
Supreme
Court
decisions
Congressional
Record
Correspondence
Writings on
Constitut.
law
Sources – Patriot Act
Congressional
Record
Law
review
articles
Editorials
Organizat.
Web sites
Opinion
polls
Interviews
Theoretical foundation
Law
Surveillance
Privacy
Theoretical foundation
Legal
H.L.A. Hart – Penumbral case
William Banks and M.E. Bowman –
privacy v. national security
Laurence Tribe – Constitutional
models
Hart's penumbral case
Law: No vehicles may be driven in
the park.
Park
?
Is an airplane a
vehicle?
Hart, H.L.A. 1977. “Positivism and the separation of law and morals.” In The
philosophy of law, edited by R.M. Dworkin, 17-37. London: Oxford University Press.
Is an airplane a vehicle?
Methods of determination
Determine everyday meaning of "vehicle"
Meaning of "vehicle" in consensus of
cases
Take a standard case and arbitrarily select
certain features
(1) normally driven on land
(2) capable of carrying a person
(3) capable of being self-propelled
Hart's penumbral case
Law: No vehicles may be driven in the
park.
Vehicle:
(1) normally driven on land
(2) capable of carrying a person
(3) capable of being self-propelled
Park
X
Error of
"formalism" or
"literalism"
Hart's penumbral case
Law: No vehicles may be driven in
the park.
What are the social
purposes of the law?
Park
X
Onset of wiretapping
1830s
Telegraph
invented
1860s
Wiretapping
during
Civil War
1870s
Telephone
invented
1880s
First reports
of
wiretaps
in press
1960s
Packet
switching
Packet
sniffers
Olmstead v. United States (1928)
AMENDMENT XVIII Passed by Congress December 18,
1917. Ratified January 16, 1919. Repealed by amendment 21.
Section 1.
After one year from the ratification of this
article the manufacture, sale, or
transportation of intoxicating liquors within,
the importation thereof into, or the
exportation thereof from the United States
and all territory subject to the jurisdiction
thereof for beverage purposes is hereby
prohibited.
Olmstead v. United States (1928)
Bootleggers
>$176,000 per month
Evidence against them was obtained by
wiretapping
Convicted of a conspiracy to violate the
National Prohibition Act
Olmstead v. United States
Question before the Court:
Is warrantless wiretapping an illegal
search and seizure and thus banned
under the Fourth Amendment?
Fourth Amendment
The right of the people to be secure in
their persons, houses, papers, and
effects, against unreasonable searches
and seizures, shall not be violated, and
no Warrants shall issue, but upon
probable cause, supported by Oath or
affirmation, and particularly describing
the place to be searched, and the
persons or things to be seized.
Olmstead v. United States (1928)
The reasonable view is that one who installs in his
house a telephone instrument with connecting wires
intends to project his voice to those quite outside, and
that the wires beyond his house and messages while
passing over them are not within the protection of the
Fourth Amendment. Here those who intercepted the
projected voices were not in the house of either party
to the conversation.
We think, therefore, that the wire tapping here
disclosed did not amount to a search or seizure within
the meaning of the Fourth Amendment. Mr. Chief
Justice Taft
Olmstead v. United States (1928)
Purpose of Fourth Amendment (Justice Taft)
The well known historical purpose of the Fourth
Amendment, directed against general warrants
and writs of assistance, was to prevent the use
of governmental force to search a man’s house,
his papers and effects; and to prevent their
seizure against his will. …
The Amendment itself shows that the search is
to be of material things….
Mr. Chief Justice Taft
Olmstead v. United States (1928)
Purpose of Fourth Amendment (Justice
Brandeis in dissent)
The protection guaranteed by the
Amendments is much broader in scope. The
makers of our Constitution undertook to
secure conditions favorable to the pursuit of
happiness. … They knew that only a part of
the pain, pleasure and satisfactions of life
are to be found in material things. They
sought to protect Americans in their beliefs,
their thoughts, their emotions and their
sensations.
Olmstead v. United States (1928)
Purpose of Fourth Amendment (Justice
Brandeis in dissent)
They conferred, as against the Government,
the right to be let alone -- the most
comprehensive of rights and the right most
valued by civilized men. To protect that right,
every unjustifiable intrusion by the
Government upon the privacy of the
individual, whatever the means employed,
must be deemed a violation of the Fourth
Amendment.
Justice Brandeis
Banks and Bowman theoretical
model
Associate General
Counsel for FBI
Crisis
Privacy
National
security
Rights of the
individual
Survival of the
group
Banks, William C., and M.E. Bowman. 2000. Executive authority for national
security surveillance. American University law review 50(1).
Oft-cited cases involving technology
used to intercept communication
Conviction upheld
W
1928
Olmstead
W
1942
Goldstein
D
1942
Goldman
1952 R
On Lee
W
S
1937/1938
Nardone
?
1961
Silverman
1967
Katz
Wiretapping evidence
“Red”disallowed
WWII
scare
E
Laurence Tribe
Models: the major alternatives for constitutional
argument and decision
Model I
Separated &
Divided Powers
Model II
Implied
Limitations on
Government
Model V
Preferred
Rights
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model I
Separated & Divided Powers
Legislative
Federal
State
Local
Executive
Judicial
Primary protection for
individual rights
provided by the states.
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model II
Implied Limitations on Gov’t
Emphasis on preserving the “natural
order” of society.
Major role of the court was to
restore natural order upset by state
legislation.
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model II (Decline)
Concern for the underprivileged
No natural order to be restored
Need for positive governmental
intervention to alleviate suffering
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model V
Preferred Rights
Exclude governmental powers from
certain spheres
Identification of “preferred
freedoms”
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model V
Preferred Rights
Emphasis on rights of:
• Communication and expression
• Political participation
• Religious autonomy
• Privacy and personhood
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Oft-cited cases involving technology
used to intercept communication
Conviction upheld
Model V
W
W
1928
Olmstead
1942
Goldstein
W
1937/1938
Nardone
Model II
D
1942
Goldman
1952 R
On Lee
S
1961
Silverman
1967
Katz
Wiretapping evidence disallowed
E
Theoretical foundation
Surveillance
Rule (1973)
Foucault (1979)
Giddens (1987)
Dandeker (1990)
Lyon (1994)
Role of surveillance
• Provision of services
• Allows participation
• Protection against threat
• Means of social control
• Discover and rout out deviance
• Threat of surveillance used to
promote compliance with the
law
Privacy theories
Alan F. Westin
Irwin Altman
Sandra Petronio
Desire to avoid
being
manipulated or
dominated wholly
by others
Release from tensions
of life in society
requires release from
pressure of playing
social roles
Westin's privacy theory: 4
functions of privacy
Personal
autonomy
Emotional
release
Self-evaluation
Limited &
protected
communication
Need to integrate
experiences into
Share confidences and
meaningful
Westin,
Alanpattern;
F. 1970. Privacy
and freedom.
London:
intimacies
only with
those one
essential
for creativity
trusts
Bodley
Head.
Altman's privacy dialectic
High Too little contact—
social isolation
Desired
level of
contact
with others
at a point
in time
Too much contact—
crowding
Low
Low
High
Achieved or actual contact
with others at a point in time
Communication Privacy
Management Theory
Sandra Petronio
Privacy Rule
Foundations
Rule Management
Processes
Boundary
Coordination
Operations
Boundary
Turbulence
Petronio, Sandra. 2002. Boundaries of privacy: dialectics of
disclosure. Albany, New York: State University of New York Press.
Communication Privacy
Management Theory
Sandra Petronio
Cultural criteria
Gendered Criteria
Privacy Rule
Development
Motivational Criteria
Contextual Criteria
Risk-Benefit Ratio Criteria
Petronio, Sandra. 2002. Boundaries of privacy: dialectics of
disclosure. Albany, New York: State University of New York Press.
Boundary coordination
Close friends
A
B
Co-owned information
formed by disclosures
Boundary turbulence
Addition of Person C
C
A
B
Change in situation may require
adjustment of boundaries
Boundary turbulence
New telecommunication interception
technology
Govt.
A
B
Introduction of new interception technology
requires re-definition of boundary between
private and accessible information
Boundary turbulence
High perceived threat level
Govt.
Threat
A
B
High perceived threat level thrusts society
into a period of boundary turbulence
Modification of Communication
Privacy Management Theory
Natural rights
philosophy
Legal
precedent
Need for social
control
Telecommunication
privacy laws
Changes in
technology
Perceived
threat level
Questions
?
Mahalo
Additional terms of interest
discourse (lower case “d”)
Language-in-use or stretches of
languages (like conversations or stories)
Discourse (upper case “D”)
Language and non-language elements
(symbols, tools, objects) used to enact
and recognize different identities and
activities. Societal or community-level.
Represented and enacted by individuals
in a variety of settings over time. E.g.
physics as a scientific Discourse.
Congressional debate through
the eyes of a religion major
Ritual that includes stylized
discourse (lower case “d”)
that often makes reference to
Discourses (upper case “D”)
HR 3162 House Discussion (Oct. 23, 2001)
Some of us, who have a different history
in America, with delegation of authority
to the Government and the abuse of that
authority, proceed a lot differently than
others when we talk about giving
authority to the Government that can be
abused. And I think that is why we are
having so much trouble in this debate.
We cannot just come in the middle of a
terrorism episode and forget all of the
history that has occurred in our country.
HR 3162 House Discussion (Oct. 23, 2001)
Some groups in our country have had
their rights violated, trampled on by the
law enforcement authorities in this
country; and so we do not have the
luxury of being able to just sit back and
give more authority than is warranted,
the authority possibly to abuse due
process through law enforcement, even
in the context of what we are going
through now. This is a very difficult time.
I acknowledge that it is. But I think we are
giving the Government and lawReference to
Rights
enforcement too much authorityCivil
in this
Discourse
bill.
Societal good
Privacy isn't just for the good of the individual.
Necessary component of a functioning society.
Need privacy to form and maintain intimate
relationships. These relationships in turn provide
the ties that bind society together.
Also liberal notion that in populist government
need creativity, fostered by privacy. See John
Stuart Mill.
Periods of boundary
turbulence
Introduction of new
interception technology
Periods of high
perceived threat
R.M. Dworkin
Rule
Applicable in an all-or-nothing fashion.
If the facts a rule stipulates are given,
then either the rule is valid, in which
case the answer it supplies must be
accepted, or it is not, in which case it
contributes nothing to the discussion.
Principle
States a reason that argues in one
direction, but does not necessitate a
particular decision.
Dworkin, R.M. (ed.). 1977. The philosophy of law. London: Oxford
University Press.
R.M. Dworkin’s definition of a
principle
“I call a ‘principle’ a standard that is to
be observed, not because it will
advance or secure an economic,
political, or social situation deemed
desirable, but because it is a
requirement of justice or fairness or
some other dimension of morality.”
Dworkin, R.M. (ed.). 1977. The philosophy of law. London: Oxford
University Press.
R.M. Dworkin’s theory of
fundamental principles
Man murdered his grandfather
Murderer tried to collect inheritance
Judge ruled that murderer could not
receive his inheritance despite being
named in the will—ruling based on
fundamental principle of law that
person shouldn’t benefit from crime
Dworkin, R.M. (ed.). 1977. The philosophy of law. London: Oxford
University Press. Case: Riggs v. Palmer 115 N.Y. 506 (1889)
Question of interest
Was there any indication that a
fundamental principle was at stake
in the majority decision in
Olmstead?
Olmstead v. United States (1928)
The evidence in the records discloses a
conspiracy of amazing magnitude… . It involved
the employment of not less than fifty persons, of
two seagoing vessels for the transportation of
liquor to British Columbia, of smaller vessels for
coastwise transportation to the State of
Washington. … In a bad month sales amounted
to $176,000; the aggregate for a year must have
exceeded two millions of dollars.
Mr. Chief Justice Taft
Individual privacy versus
individual secrecy
Privacy
Allowed and in some
cases required for
socially-sanctioned acts.
Stress reducing.
Secrecy
Often involves
socially proscribed acts.
Stress inducing.
Margulis, Stephen T. 1977. Conceptions of privacy: current status and next steps. Journal
of social issues 33(3):5-21, p. 10.
Margulis, Stephen T. 2003. Privacy as a social issue and behavioral concept. Journal of
social issues 59(2):243-261.
Model I
Separated & Divided Powers
All lawful power derives from the people
and must be held in check to preserve
their freedom.
Centralized accumulation of power in any
person or single group of persons results
in tyranny
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model I
Separated & Divided Powers
Legislative
Executive
Judicial
Federal
State
Horizontal and vertical
separation of powers.
Local
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Model II
Implied Limitations on
Government
Governmental regulations must
promote the general welfare, not
promote private interests
Tribe, Laurence. 2000. American constitutional law, vol. one. Third ed.
New York: Foundation Press.
Question of interest
Can we utilize Communications
Privacy Management Theory in
general and the concept of
"boundary turbulence" in particular
to model the development of laws
regulating the use of
telecommunication interception
technology?
Terms of interest
Constitution—fundamental law of the
nation
Statutory law (also termed legislative
law)
Case law—Collection of reported
cases that form the body of law within
a given jurisdiction
Agency-made law—administrative
rules and regulations
Informational privacy - Westin's
definition - part 1
Privacy is the claim of individuals,
groups, or institutions
to determine for themselves
when, how, and to what extent
information about them
is communicated to others.
Westin, Alan F. 1970. Privacy and freedom. London: Bodley Head.
Informational privacy - Westin's
definition - part 2
Viewed in terms of the relation of
the individual to social participation,
privacy is the voluntary and temporary
withdrawal of a person from the
general society through physical
or psychological means, either
in a state of solitude or, when among
larger groups, in a condition of
anonymity or reserve.
Informational privacy - Westin's
definition - part 3
The individual's desire for privacy
is never absolute, since participation
in society is an equally powerful desire.
Informational privacy - Westin's
definition - part 4
Thus each individual is continually
engaged in a personal adjustment
process in which he balances
the desire for privacy with the desire
for disclosure and communication
of himself to others, in light of
the environmental conditions and
social norms set by the society
in which he lives.
Informational privacy - Westin's
definition - part 5
The individual does so in the face
of pressures from the curiosity of others
and from the processes of surveillance
that every society sets in order
to enforce its social norms.
Types of privacy in law
Informational
privacy
Control of access to
information about a
person or group of
persons
Privacy Act of 1974
Decisional
privacy
Freedom to make
personal decisions
without interference
from government
Roe v. Wade 1973
Gormley, Ken. 1992. One hundred years of privacy. Wisconsin law review
Sept/Oct 1992:1335-1441.
Jeremy Bentham’s Panopticon
cells
entry
walkway
inspector’s
lodge