Title: Internet Surveillance Law after the USA Patriot Act: The Big Brother That Isn't
Abstract: INTRODUCTION Following the September 11 terrorist attacks on New York and Washington, Congress rushed into action and quickly passed antiterronsm legislation known as the USA Patriot Act.1 The Patriot Act has been widely understood as a sweeping2 antiterrorism law that gave the government new powers3 to conduct electronic surveillance over the Internet. The Act's surveillance provisions proved so controversial that Congress added a sunset provision that will nullify several of its key provisions after four years, on December 31, 2005.4 To many legislators, the vast law en-forcement authorities unleashed by the Patriot Act seemed too dangerous to extend indefinitely.5 The Patriot Act triggered tremendous anxiety in part because few understood exactly what it did. At the time of its passage, even many key legislators seemed to have little idea of the laws governing electronic surveillance, both before the Patriot Act and following it.6 Did the Act go too far? How much privacy did Internet users have, and how much were they giving away? No one seemed to know, and because the legislation rushed through Congress with remarkable speed,7 little in the way of Committee reports or other legislative history existed to help explain it.8 Most commentators simply assumed the worst: they sensed that Internet users probably had very little privacy online before the Patriot Act, and that the Patriot Act bargained away whatever precious drops of privacy they had left.9 This Article argues that the common wisdom on the USA Patriot Act is incorrect. The Patriot Act did not expand law enforcement powers dramatically, as its critics have alleged. In fact, the Patriot Act made mostly minor amendments to the electronic surveillance laws. Many of the amendments merely codified preexisting law. Some of the changes expanded law enforcement powers, but others protected privacy and civil liberties. Several of the most controversial amendments may actually increase privacy protections, rather than decrease them. Most importantly, none of the changes altered the basic statutory structure of electronic surveillance law created by the Electronic Communications Privacy Act of 1986.10 While critics of the Patriot Act have rightly insisted that the government should have no more surveillance power than it needs, they have failed to see that the Patriot Act generally offers a balanced approach that in some ways protects civil liberties more than the laws it replaced. The Patriot Act is hardly perfect, but it is not the Big Brother law that many have portrayed it to be. This Article will explain how and why the conventional wisdom about the Patriot Act misses the mark. It begins by explaining what Internet surveillance is and how it works, which provides some guidance for understanding how Congress has decided to regulate it. It then applies this framework to study three of the major criticisms of the Patriot Act. This approach unfortunately sacrifices breadth for depth, but it allows us to see how misconceptions about both the law and technology of the Internet has led to significant misunderstandings about Internet surveillance law and the effect of the USA Patriot Act. The argument proceeds in four Parts. Part I explains the basic framework of network surveillance law that governs any communications network. It classifies the types of laws employed to govern the surveillance of communications networks such as the postal system, the telephone, and the Internet using a series of dichotomies. Once a framework has been developed, it is then possible to articulate an entire set of surveillance laws for each network and make comparisons across different technologies. This Part also explains how Internet surveillance includes both email and packet-level surveillance, and how laws that govern Internet surveillance must grapple with both levels of surveillance. Part II considers the highly controversial pen register amendments to the Patriot Act. …
Publication Year: 2002
Publication Date: 2002-01-01
Language: en
Type: article
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Cited By Count: 37
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