Reviving Telecommunications Surveillance Law
Author(s): Paul M. Schwartz
Abstract: Consider three questions. How would one decide if there was too much telecommunications surveillance in the United States, or too little? How would one know if law enforcement was using its surveillance capabilities in the most effective fashion? How would one assess the impact of this collection of information on civil liberties?
In answering these questions, a necessary step, the logical first move, would be to examine existing data about governmental surveillance practices and their results. One would also need to examine and understand how the legal system generated these statistics about telecommunications surveillance. Ideally, the information structure would generate data sets that would allow the three questions posed above to be answered. Light might also be shed on other basic issues, such as whether or not the amount of telecommunications surveillance was increasing or decreasing.
Such rational inquiry about telecommunications surveillance is, however, largely precluded by the haphazard and incomplete information that the government collects about it. This Article evaluates the main parts of telecommunications surveillance law and the statistics about their use. The critical statutory regulations are (1) the Wiretap Act, (2) the Pen Register Act, (3) the Stored Communications Act, and, for foreign intelligence, (4) the Foreign Intelligence Surveillance Act, and (5) the different provisions for National Security Letters (NSLs).
Other parts of the surveillance landscape represent an even greater expanse of blank spaces on the legal map. There are a number of “semi-known unknowns” (to coin a phrase); these are kinds of telecommunications surveillance about which only limited public information exists – this surveillance also occurs outside a detailed legal framework.
This Article concludes with the development of the concept of “privacy theater.” Currently, the value of the collection of telecommunications statistics is largely ritualistic. It serves to create a myth of oversight. This Article proposes that we go beyond myth and re-dedicate ourselves to the task of creating a telecommunications surveillance law that minimizes the impact of surveillance on civil liberties and maximizes its effectiveness for law enforcement.
Keywords: privacy, telecommunications surveillance, Wiretap Act, Pen Register Act, Sotred Communications Act, Foreign Intelligence Surveillance Act