Chapter 10 Privacy and the Police State. Governmental Intrusion into Individual Privacy Affects written and oral communications Data-GPS coordinates Fourth

Chapter 10Privacy and the Police State

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Governmental Intrusion into Individual Privacy• Affects written and oral communications• Data-GPS coordinates• Fourth Amendment search occurs when the

government violates a subjective expectation of privacy that society regards as reasonable.

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Factors to Consider in Search• Evidence may be destroyed• Public is in danger• Police in ‘hot pursuit’• Probable cause • Investigatory stop• Incident to an arrest• Government must describe the place and materials


Probable Cause

• Fourth Amendment-search and seizure • What does society deem reasonable?• Government needs judge signed warrant• Subpoena is from a prosecutor

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The Statutory Framework

• Omnibus Crime Control and Safe Streets Act of 1968• Authorizes federal government to conduct court-ordered

real-time electronic surveillance of wire, oral or electronic communications when investigating serious, enumerated crimes.

• Electronic Communications Privacy Act- 1986• Prevents unauthorized government access to private

electronic communications• Consent required by one party, no disclosure• Modified by Patriot Act

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Foreign Intelligence Surveillance Act• Originally designed to end government spy agency

abuse and create oversight (1978, Watergate era)• Allows POTUS to approve warrantless searches• 2012-1,789 orders signed, none denied!• FISC hears only one side-government’s, findings not

public, few appeals, none to SCOTUS• FISC is a ‘parallel Supreme Court’• Proper legislative oversight difficult, if unlikely• ‘Secrecy’ is repugnant in a free and open society-jfk


FISA 2007 Amendments

• Phone carriers such as AT&T immunized from civil liability for cooperating with the NSA• Legalized the Terrorist Surveillance Program



• FISC can require Internet firms to provide the government access to American citizen’s international communications without a warrant.



• FISA extended to 12/31/2017 by President Obama


USA Patriot Act

• The start of the United State’s massive domestic spying program begun after 9/11/2001.• 342 page bill enacted into law in 5 weeks• A time of intense public fear• Echoes of Executive Order 9066, internment of

110,000 U.S. citizens of Japanese ancestry


Patriot Act Effects

• 210-subpoena credit card and bank numbers from ISPs• 212-allows ISPs to voluntarily disclose records and

contents of electronic transmissions if “danger of death or serious physical injury”• 213-sneak and peek search warrant• 214-simplifies FBI monitoring of citizen

communications (pen registers, trap and trace)• 215-lessened standard for federal government

interception of electronic messages.


Patriot Act Effects, 2

• 215-National Security Letters, which have been held unconstitutional• 216-lowered bar for obtaining Internet routing

information• 217-permits service providers to ‘invite’ law

enforcement to assist in tracking and intercepting a computer trespasser’s communications• 218-significant (not primary) purpose of

surveillance be for gathering foreign intelligence


Executive Order 12333

• Delegates to the Attorney General the power to approve the use of any technique for intelligence purposes within the United States or against a U.S. citizen abroad.


CALEA-1994

• Communications Assistance for Law Enforcement Act• FBI wants back doors to ISPs, phonecos, Facebook

and Google and other new technologies• Downside, once a backdoor exists, hackers can find

and use


CISPA

• Cyber Intelligence Sharing and Protection Act• Section 2511 Letters• Would create a database of information to search

for violations of laws• Supersede any state or federal law• Government would not prosecute communication

providers for wiretap if info was shared with government.

http://en.wikipedia.org/wiki/Cyber_Intelligence_Sharing_and_Protection_Act


Homeland Security Act

• Prohibits online advertising of illegal surveillance devices• Allows law enforcement to do pen register or trap

and trace without court order in cases of national security


21st Century DOJ Appropriation• Law enforcement agents are not required to be

present during the execution of a search warrant.


Federal Espionage Tools

• Carnivore• Hacking• CIPAV• Social Media Real-Time Monitoring• DSCNet-Digital Collection Systems Network• DMAC-Domestic Communications Assistance Center• Fusion Centers• Xkeyscore• Total Information Awareness• PRISM• BLARNEY


NSA

• Supposed to eavesdrop on foreign communications• But they have been spying on US citizens• Is a military agency• Collected metadata on phone calls


U.S. Citizen’s Right to Privacy• In light of terrorism on U.S. soil does turning this

country into a police state do anything to enhance our security?

• Does privacy matter to the preservation and functioning of a democracy?

Documents

Chapter 10 Privacy and the Police State. Governmental Intrusion into Individual Privacy Affects written and oral communications Data-GPS coordinates Fourth