Technology and Big Data Meet the Risk of Terrorism in an Era of Predictive Policing and Blanket Surveillance

Surveillance studies suffer from a near-total lack of empirical data, partially due to the highly secretive nature of surveillance programs. However, documents leaked by Edward Snowden in June of 2013 provided unprecedented proof of top-secret American data mining initiatives that covertly monitor electronic communications, collect, and store previously unfathomable quantities of data. These documents presented an ideal opportunity for testing theory against data to better understand contemporary surveillance. This qualitative content analysis compared themes of technology, privacy, national security, and legality in the NSA documents to those found in sets of publicly available government reports, laws, and guidelines, finding inconsistencies in the portrayal of governmental commitments to privacy, transparency, and civil liberties. These inconsistencies are best explained by the risk society theoretical model, which predicts that surveillance is an attempt to prevent risk in globalized and complex contemporary societies

Technology and Big Data Meet the Risk of Terrorism in an Era of Predictive Policing and Blanket Surveillance

Surveillance studies suffer from a near-total lack of empirical data, partially due to the highly secretive nature of surveillance programs. However, documents leaked by Edward Snowden in June of 2013 provided unprecedented proof of top-secret American data mining initiatives that covertly monitor electronic communications, collect, and store previously unfathomable quantities of data. These documents presented an ideal opportunity for testing theory against data to better understand contemporary surveillance. This qualitative content analysis compared themes of technology, privacy, national security, and legality in the NSA documents to those found in sets of publicly available government reports, laws, and guidelines, finding inconsistencies in the portrayal of governmental commitments to privacy, transparency, and civil liberties. These inconsistencies are best explained by the risk society theoretical model, which predicts that surveillance is an attempt to prevent risk in globalized and complex contemporary societies

Protecting Patient Privacy: Strategies for Regulating Electronic Health Records Exchange

The report offers policymakers 10 recommendations to protect patient privacy as New York state develops a centralized system for sharing electronic medical records. Those recommendations include:Require that the electronic systems employed by HIEs have the capability to sort and segregate medical information in order to comply with guaranteed privacy protections of New York and federal law. Presently, they do not.Offer patients the right to opt-out of the system altogether. Currently, people's records can be uploaded to the system without their consent.Require that patient consent forms offer clear information-sharing options. The forms should give patients three options: to opt-in and allow providers access to their electronic medical records, to opt-out except in the event of a medical emergency, or to opt-out altogether.Prohibit and sanction the misuse of medical information. New York must protect patients from potential bad actors--that small minority of providers who may abuse information out of fear, prejudice or malice.Prohibit the health information-sharing networks from selling data. The State Legislature should pass legislation prohibiting the networks from selling patients' private health information

Privacy on the Line

A penetrating and insightful study of privacy and security in telecommunications for a post-9/11, post-Patriot Act world. Telecommunication has never been perfectly secure. The Cold War culture of recording devices in telephone receivers and bugged embassy offices has been succeeded by a post-9/11 world of NSA wiretaps and demands for data retention. Although the 1990s battle for individual and commercial freedom to use cryptography was won, growth in the use of cryptography has been slow. Meanwhile, regulations requiring that the computer and communication industries build spying into their systems for government convenience have increased rapidly. The application of the 1994 Communications Assistance for Law Enforcement Act has expanded beyond the intent of Congress to apply to voice over Internet Protocol (VoIP) and other modern data services; attempts are being made to require ISPs to retain their data for years in case the government wants it; and data mining techniques developed for commercial marketing applications are being applied to widespread surveillance of the population. In Privacy on the Line, Whitfield Diffie and Susan Landau strip away the hype surrounding the policy debate over privacy to examine the national security, law enforcement, commercial, and civil liberties issues. They discuss the social function of privacy, how it underlies a democratic society, and what happens when it is lost. This updated and expanded edition revises their original—and prescient—discussions of both policy and technology in light of recent controversies over NSA spying and other government threats to communications privacy

The Tension Between Privacy and Security

A Review of President’s Review Group on Intelligence and Communications Technologies, Liberty and Security in a Changing World, 2013 and United Nations Office of the High Commissioner, Report of the Special Rapporteur on the Right to Privacy, Joseph A. Cannataci, 2016

Legal Archetypes and Metadata Collection

In discussions of state surveillance, the values of privacy and security are often set against one another, and people often ask whether privacy is more important than national security.2 I will argue that in one sense privacy is more important than national security. Just what more important means is its own question, though, so I will be more precise. I will argue that national security rationales cannot by themselves justify some kinds of encroachments on individual privacy (including some kinds that the United States has conducted). Specifically, I turn my attention to a recent, well publicized, and recently amended statute (section 215 of the USA Patriot Act3), a surveillance program based on that statute (the National Security Agency’s bulk metadata collection program), and a recent change to that statute that addresses some of the public controversy surrounding the surveillance program (the USA Freedom Act).4 That process (a statute enabling surveillance, a program abiding by that statute, a public controversy, and a change in the law) looks like a paradigm case of law working as it should; but I am not so sure. While the program was plausibly legal, I will argue that it was morally and legally unjustifiable. Specifically, I will argue that the interpretations of section 215 that supported the program violate what Jeremy Waldron calls “legal archetypes,”5 and that changes to the law illustrate one of the central features of legal archetypes and violation of legal archetypes. The paper proceeds as follows: I begin in Part 1 by setting out what I call the “basic argument” in favor of surveillance programs. This is strictly a moral argument about the conditions under which surveillance in the service of national security can be justified. In Part 2, I turn to section 215 and the bulk metadata surveillance program based on that section. I will argue that the program was plausibly legal, though based on an aggressive, envelope-pushing interpretation of the statute. I conclude Part 2 by describing the USA Freedom Act, which amends section 215 in important ways. In Part 3, I change tack. Rather than offering an argument for the conditions under which surveillance is justified (as in Part 1), I use the discussion of the legal interpretations underlying the metadata program to describe a key ambiguity in the basic argument, and to explain a distinct concern in the program. Specifically that it undermines a legal archetype. Moreover, while the USA Freedom Act does not violate legal archetypes, and hence meets a condition for justifiability, it helps illustrate why the bulk metadata program did violate archetypes

FISA Reform

Congress and the Executive Branch are poised to take up the issue of FISA reform in 2014. What has been missing from the discussion is a comprehensive view of ways in which reform could be given effect—i.e., a taxonomy of potential options. This article seeks to fill the gap. The aim is to deepen the conversation about abeyant approaches to foreign intelligence gathering, to allow fuller discussion of what a comprehensive package could contain, and to place initiatives that are currently under consideration within a broader, over-arching framework. The article begins by considering the legal underpinnings and challenges to the President\u27s Surveillance Program. It then examines how technology has altered the types of information available, as well as methods of transmission and storage. The article builds on this to develop a taxonomy for how a statutory approach to foreign intelligence gathering could be given force. It divides foreign intelligence gathering into two categories: front-end collection and back-end analysis and use. Each category contains a counterpoise structured to ensure the appropriate exercise of Congressionally-mandated authorities. For the front-end, this means balancing the manner of collection with requirements for approval. For the back-end, this means offsetting implementation with transparency and oversight. The article then considers the constituent parts of each category

Civil Liberty and National Security: The Implications of the Debate for the United States Intelligence Community

For years, the US Intelligence Community has worked to maintain the thin and often wavering line between civil liberty and national security in its attempts to protect the American people while simultaneously preserving their constitutional rights. However, this line has often shifted with the course of American history, including events such as the Alien and Sedition Acts, the establishment of the Church Committee, and the publication of the NSA’s data collection program. One of the most significant of these factors was the passage and eventual amendment of the Foreign Intelligence Surveillance Act, which opened the door to later constitutional controversies. In the midst of this ever-changing national landscape, how is the US Intelligence Community to strike a balance between protecting the American people and ensuring their civil freedoms? The Intelligence Community must remember that it has a responsibility to protect both the American people and their constitutional freedoms. The Intelligence Community faces the unique challenge of reconciling the freedom of the American people to live safely and the freedom of the US government, embodied by the executive branch, to lead. In recent history, it has done a remarkable job of instituting measures of oversight and enacting greater controls on itself as part of the executive branch to avoid the unconstitutional missteps it has taken in the past. Intelligence agencies in the present and future must continue to prioritize not only on the safety of the United States and its people but also on the maintenance of the liberties guaranteed to them under the US Constitution